                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS November 23, 2012

                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court


 MARK LEE WILKINSON,

           Petitioner-Appellant,
 v.                                                           No. 12-1269
                                                     (D.C. No. 1:11-CV-00454-REB)
 RAE TIMME, Warden at Fremont                                   (D. Colo.)
 Correctional; JOHN SUTHERS, Attorney
 General of the State of Colorado,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       Mark Lee Wilkinson, a Colorado state prisoner proceeding pro se, requests a

certificate of appealability (COA) to appeal the district court’s denial of his application

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny a COA, deny

Wilkinson’s motion for a stay and abeyance, and dismiss this matter.

                                      I. Background

       Wilkinson was convicted by jury trial on three counts of sexual assault on a child


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
by one in a position of trust, three counts of sexual assault on a child, three counts of

aggravated incest, one count of sexual assault on a child by one in a position of trust as

part of a pattern of sexual abuse, and one count of sexual assault on a child as part of a

pattern of abuse. He was sentenced to an indeterminate term of fifty-two years to life in

prison. The Colorado Court of Appeals affirmed his conviction and sentence on direct

appeal. The Colorado Supreme Court denied certiorari review. Wilkinson sought

postconviction relief in the Colorado trial court, but the state trial court denied all of his

postconviction motions. The Colorado Court of Appeals affirmed the trial court’s order

denying postconviction relief, and the Colorado Supreme Court denied Wilkinson’s

petition for writ of certiorari in the postconviction proceedings.

       On February 23, 2011, Wilkinson filed a habeas petition in federal district court,

alleging seven claims for relief:

              1.      Counsel was ineffective during the plea bargaining
                      process by failing to fully explain the benefits of the
                      proposed plea agreement.
              2.      Counsel was ineffective during pretrial, trial,
                      sentencing, and appellate proceedings because
                      (a)   Counsel failed to preserve Mr. Wilkinson’s
                            right to a preliminary hearing.
                      (b)   Counsel failed to protect Mr. Wilkinson’s right
                            to a speedy trial by failing to enter a timely plea
                            of not guilty.
                      (c)   Counsel failed to conduct an adequate
                            investigation, which led to exculpatory evidence
                            not being presented.
                      (d)   Counsel failed to prepare for and object to the
                            testimony of the prosecution’s expert witness.
                      (e)   Counsel failed to endorse a defense expert to
                            challenge the testimony of the prosecution’s

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            expert witness.
     (f)    Counsel failed to obtain and compel essential
            testimony from the victim’s mother.
     (g)    Counsel failed to research and understand the
            rules of procedure and evidence and the
            applicable law.
     (h)    Counsel failed to participate in the trial at an
            acceptable level.
     (i)    Counsel failed to exclude evidence of Mr.
            Wilkinson’s sexual orientation.
     (j)    Counsel failed to develop any discernable
            theory of defense.
     (k)    Counsel on direct appeal failed to argue that Mr.
            Wilkinson was denied a fair trial because
            counsel failed to gain admissibility of social
            services reports that would have supported a
            theory of defense.
     (l)    Counsel on direct appeal failed to challenge the
            trial court’s ruling barring statements made by
            the victim to the family therapist.
     (m) Counsel on direct appeal failed to challenge the
            trial court’s ruling permitting the claim that Mr.
            Wilkinson’s unrelated travel to Florida
            constituted flight to avoid prosecution.
     (n)    Counsel on direct appeal failed to raise properly
            the issue of multiple convictions for one
            offense.
3.   His Sixth Amendment right to a fair and impartial jury
     was violated by admission of evidence of his sexual
     orientation.
4.   His Sixth Amendment right to compulsory process was
     violated by the trial court’s failure to compel the
     victim’s mother to appear and testify.
5.   His Sixth Amendment right to a speedy trial was
     violated.
6.   His right to a fair trial was violated when the trial court
     allowed an unendorsed expert witness to testify against
     him.
7.   His sentence was aggravated illegally in violation of
     Apprendi v. New Jersey, 530 U.S. 466 (2000), and
     Blakely v. Washington, 542 U.S. 296 (2004).

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R. at 707-08.
       On August 2, 2011, the district court issued an order dismissing Wilkinson’s

habeas petition in part. The district court dismissed Wilkinson’s claims 1, 2(a)-(c), (f)-

(n), 3, 4, and 6 as unexhausted and procedurally barred because Wilkinson failed to raise

those claims in his postconviction appeal with the Colorado Court of Appeals. Wilkinson

raised these claims in a supplemental motion that was attached as an appendix to his brief

to the Colorado Court of Appeals. Wilkinson referenced the supplemental motion in a

footnote in his brief: “Every one of the IAC allegations in the motion and supplement . . .

were proven at the hearing. For lack of space, this brief will not detail each and every

one. The Supplement to the motion is attached as Appendix A.” R. at 716-17. The

district court found that the referenced motion in the brief’s appendix did not satisfy the

fair presentation requirement, and as such, the claims were not exhausted. Additionally,

the district court found that claim three was unexhausted because that claim was not

presented to the state courts as a federal constitutional claim and because Wilkinson

presented to the state courts a different claim than he raised in federal court. The district

court also found that claim six was unexhausted because it was not raised on direct appeal

to the Colorado Court of Appeals as a federal constitutional issue.

       On October 11, 2011, Wilkinson filed a Motion for Leave to Amend Application

for a Writ of Habeas Corpus, asking the district court to reconsider its finding that several

of his claims were unexhausted and procedurally barred. In the same motion, Wilkinson

also sought leave to amend his habeas application to assert two additional claims for


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relief. In claim eight, Wilkinson contended that his rights were violated when the trial

court denied his motion for a new trial based on newly discovered evidence, and in claim

nine, Wilkinson contended that his convictions on multiple counts violated double

jeopardy. On February 13, 2012, the district court issued an order denying Wilkinson’s

motion to reconsider, denying his motion to amend the habeas application to add claim

nine, and granting his motion to amend the habeas application to add claim eight. The

district court found that Wilkinson’s claim nine did not relate back to his claim seven

because the two questions did not share a common core of operative facts.

       On June 1, 2012, the district court denied Wilkinson’s habeas petition in full and

denied a COA.

                                       II. Analysis

       Wilkinson seeks a COA on five issues: (1) whether the district court erred in its

ruling that claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 were unexhausted and procedurally

barred; (2) whether the district erred by unreasonably applying Strickland v. Washington,

466 U.S. 668 (1984), to Wilkinson’s claims of ineffective assistance of state trial counsel

and state appellate counsel; (3) whether the district court erred by unreasonably applying

Barker v. Wingo, 407 U.S. 514 (1972), to his claim of a speedy trial violation; (4)

whether the district court erred by unreasonably applying Apprendi v. New Jersey, 530

U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), to Wilkinson’s claim

that his sentence was unconstitutionally aggravated; and (5) whether the district court

erred in its ruling that Wilkinson’s claim nine, that his sentences violated double

                                             5
jeopardy, was time-barred because it did not relate back to claim seven.

       A petitioner seeking habeas relief must obtain a COA before this court may

consider the merits of his appeal. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the

merits of appeals from habeas petitioners.”). To be entitled to a COA, Wilkinson must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, the petitioner must demonstrate that “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted).

       When the district court denies a habeas petition on procedural grounds without

reaching the underlying constitutional claim, this court will issue a COA only “if the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right, and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 478 (2000).

       A.     Exhaustion

       To obtain habeas relief, a petitioner must exhaust state remedies, or demonstrate

that there is an absence of available state remedies or that circumstances exist that render

the state process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1).

The exhaustion requirement is satisfied “once [a] federal claim has been fairly presented

                                               6
to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971). See also Dever v. Kan.

State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (“The exhaustion requirement is

satisfied if the federal issue has been properly presented to the highest state court, either

by direct review of the conviction or in a postconviction attack.”). Petitioners must

present the claims as federal constitutional claims in state court in order to satisfy the

exhaustion requirement. Duncan v. Henry, 513 U.S. 364, 365-66 (1995).

       The district court dismissed Wilkinson’s claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 as

unexhausted because an appellate brief referencing or implicitly incorporating a

supplemental motion filed in the trial court fails to satisfy the fair presentation

requirement. R. at 717-22. We agree. The Supreme Court has held that the exhaustion

requirement is not satisfied when a petitioner’s certiorari petition to the state supreme

court does not assert claims that were brought in the state trial or appellate courts.

Baldwin v. Reese, 541 U.S. 27, 31 (2004). It is not enough for exhaustion purposes that

the state supreme court had the opportunity to read the lower state court opinions. Id.

Similarly, this circuit has held that petitioners cannot incorporate by reference claims or

arguments that they had made in filings with the district court. Gaines-Tabb v. ICI

Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998) (holding that allowing

litigants to adopt district court filings would “unnecessarily complicate the task of an

appellate judge”); Argota v. Miller, 424 F. App’x 769, 771 (10th Cir. 2011) (declining to

consider the petitioner’s claims that he sought to incorporate “merely by referencing the §

2254 habeas petition that he filed in the district court”). We have also held that the

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exhaustion requirement is not satisfied when the petitioner merely attached his state

habeas petition and the state district court order to a writ of certiorari petition to the state

supreme court. Jernigan v. Jaramillo, 436 F. App’x 852, 856-57 (10th Cir. 2011). Jurists

of reason would not debate that the district court properly dismissed Wilkinson’s claims

1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 as unexhausted, and we deny a COA on this issue.

       B.      Motion to Amend to Add Claim Nine

       Wilkinson also appeals the district court’s ruling denying his motion to amend his

habeas petition to add claim nine. The district court found that claim nine was time-

barred and that it did not relate back to claim seven because the two questions “d[id] not

share a common core of operative facts.” R. at 1027. We have held that

               an untimely amendment to a [habeas petition] which, by way
               of additional facts, clarifies or amplifies a claim or theory in
               the original motion may, in the District Court’s discretion,
               relate back to the date of the original motion if and only if the
               original motion was timely filed and the proposed amendment
               does not seek to add a new claim or to insert a new theory into
               the case.

United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (quotation and

alterations omitted); see also Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.

2001) (applying Espinoza-Saenz’s relation-back rule to § 2254 petitions). We conclude

that the district court did not abuse its discretion in denying Wilkinson’s motion to amend

his habeas petition to add claim nine. In claim nine, Wilkinson alleged that his

convictions on multiple counts violated double jeopardy, whereas in claim seven,

Wilkinson alleged that his sentence was aggravated illegally in violation of Apprendi and

                                                8
Blakely. Jurists of reason would not debate whether the district court’s procedural ruling

was correct, as Wilkinson’s claim nine does not merely “clarif[y] or amplif[y] a claim or

theory in the original motion.” Espinoza-Saenz, 235 F.3d at 505 (quotation and alteration

omitted). We deny a COA on the issue of whether district court erred in finding that

claim nine was time-barred.

       C.     Claims Dismissed on the Merits

       Wilkinson argues that the district court erred by unreasonably applying Strickland

to his claims of ineffective assistance of state trial counsel and state appellate counsel,

that the district court erred by unreasonably applying Barker v. Wingo to his claim of a

speedy trial violation, and that the district court erred by applying Apprendi and Blakely

to his claim that his sentence was unconstitutionally aggravated.

       This court has reviewed Wilkinson’s application for a COA and appellate brief, the

district court’s orders, and the entire record on appeal pursuant to the framework set out

by the Supreme Court in Miller-El and concludes that Wilkinson is not entitled to a COA

on these claims. The district court’s resolution of Wilkinson’s claims is not reasonably

subject to debate and the claims are not adequate to deserve further proceedings.

Accordingly, Wilkinson has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

D.     Motion to Stay and Abey

       While Wilkinson’s COA petition was pending, he filed a Motion for Stay and

Abeyance with this court on November 16, 2012, asking for a stay and abeyance of his

                                               9
federal habeas petition. Wilkinson explains that on July 19, 2012, he filed a Motion to

Correct Sentence with the state trial court, arguing that the sentence imposed was illegal

on various grounds: (1) the court improperly imposed a sentence of mandatory parole;

(2) the sentence imposed was illegal because the lower portion of the indeterminate

sentence exceeds the statutory presumptive range; (3) the court lacked subject matter

jurisdiction; (4) the complaint was substantially flawed; and (5) the court incorrectly

advised the jury. On October 17, 2012, the state trial court granted only the first claim of

his motion, and the state trial court ordered that the mittimus be amended to reflect

discretionary parole for several counts of his conviction. The state trial court denied all

other claims in his motion.

       In his motion for a stay and abeyance, Wilkinson argues the correction of his

sentence could have a direct effect on his federal habeas petition. Citing Rhines v.

Weber, 544 U.S. 269, 275-77 (2005), Wilkinson argues that a federal court has the

discretion to enter a stay and allow the state court to resolve issues in the first instance.

As the Supreme Court explained in Rhines, stay and abeyance should only be allowed in

limited circumstances and is only appropriate if the court finds “there was good cause for

the petitioner’s failure to exhaust his claims first in state court” and if the petitioner’s

unexhausted claims are potentially meritorious. Rhines, 544 U.S. at 277-78. We

conclude that the state trial court’s correction of Wilkinson’s sentence has no effect on

our denial of his COA on the issue of whether the district court erred in its ruling that

claims 1, 2(a)-(c), 2(f)-(n), 3, 4, and 6 of his habeas petition were unexhausted and

                                               10
procedurally barred. At the time that he filed his habeas petition with the federal district

court, Wilkinson had failed to fully exhaust his state remedies because he had failed to

satisfy the fair presentation requirement, and there was no good cause for Wilkinson’s

failure to exhaust his claims in the state court. We also conclude that the state trial

court’s correction of his sentence has no effect on our denial of his COA on the other four

issues of his habeas petition. Accordingly, we deny Wilkinson’s motion for a stay and

abeyance.

                                      III. Conclusion

       For the foregoing reasons, we DENY Wilkinson’s application for a COA, DENY

his motion for a stay and abeyance, and DISMISS this matter.


                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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