                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS                    February 6, 2009
                                                                       Elisabeth A. Shumaker
                                    TENTH CIRCUIT                          Clerk of Court


 MONSEL DUNGEN,

               Petitioner - Appellant,

 v.                                                           No. 08-1331
                                                 (D. Ct. No. 05-CV-01842-EWN-MEH)
 AL ESTEP; THE ATTORNEY                                        (D. Colo.)
 GENERAL FOR THE STATE OF
 COLORADO,

               Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Petitioner Monsel Dungen, a Colorado state prisoner, seeks a certificate of

appealability (“COA”) to appeal from the denial of his habeas petition under 28 U.S.C.


       *
        This order is not binding precedent except under the doctrines of law of the case,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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
§ 2254. Mr. Dungen presents eight claims in his pro se brief in support of his application

for a COA. After reviewing each claim, we have determined that three of the claims fail

because they were not adequately preserved in Mr. Dungen’s objections to the magistrate

judge’s report; two of the claims fail because they are procedurally barred; and three of

the claims fail because Mr. Dungen has not met the standard under which we would grant

a COA. We therefore DENY Mr. Dungen’s application for a COA and DISMISS the

appeal.

                                    I. BACKGROUND

       Mr. Dungen challenges his 1991 conviction in Colorado state court for first degree

murder, second degree burglary, aggravated robbery, and first degree aggravated motor

vehicle theft. The Colorado Court of Appeals upheld that conviction, and the Colorado

Supreme Court denied Mr. Dungen’s application for a writ of certiorari. Mr. Dungen

filed several applications in state court for post-conviction relief, all of which also failed.

In September 2005, he applied for a writ of habeas corpus in federal district court.

       The matter was referred to a magistrate judge who, in a detailed opinion, rejected

all of the petitioner’s claims and recommended that his application for a writ of habeas

corpus be denied. See Dungen v. Estep, No. 05-CV-01842-EWN-MEH, 2008 WL

4000864, at *4–*23 (D. Colo. Aug. 26, 2008). The district court judge then accepted the

magistrate judge’s recommendation and dismissed Mr. Dungen’s application with

prejudice. Id. at *4.

       Mr. Dungen now seeks a COA from this court. He bases his application on a

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variety of alleged errors during and surrounding his trial, and he groups these errors into

the following eight asserted claims: (1) suppression of exculpatory evidence; (2) racial

discrimination in jury selection; (3) prosecutorial misconduct; (4) judicial misconduct; (5)

ineffective assistance of counsel; (6) unlawful stop, search, and seizure; (7) the use of

hearsay statements, the violation of his right to remain silent, and the violation of his right

to confront witnesses against him; and (8) the Colorado Court of Appeals’s summaries

being contrary to federal law.

                                     II. DISCUSSION

A.     Claims Not Preserved by Objection

       We first hold that three of Mr. Dungen’s claims have been waived. The district

court dismissed claims Six, Seven, and Eight without addressing the merits, because of

the inadequacy of Mr. Dungen’s objections to the magistrate judge’s recommendation.

Dungen, 2008 WL 4000864 at *2–*3. On appeal, “[o]ur waiver rule provides that the

failure to make timely objection to the magistrate’s findings or recommendations waives

appellate review of both factual and legal questions. The waiver rule as a procedural bar

need not be applied when the interests of justice so dictate.” Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991).

       After reviewing Mr. Dungen’s objections, we agree that he made no specific

objections on the merits to claims Six, Seven, or Eight. He merely made cursory and

conclusory reference to claim Seven and did not reference claim Eight in his objections.

Regarding claim Six, Mr. Dungen wrote that he “objects to claim Six being unexhausted

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for reasons of the claim being filed under the Fifth, Sixth and Fourteenth Amendments.”

The magistrate judge, however, did not decide claim Six based on exhaustion. Claim Six

alleged an illegal stop, search and seizure, in violation of the Fifth, Sixth, and Fourteenth

Amendments. Dungen, 2008 WL 4000864 at *18. Such a claim is actually a Fourth

Amendment claim. See U.S. Const. amend. IV. The magistrate judge assessed the claim

as a Fourth Amendment claim and determined that it failed on the merits. Dungen, 2008

WL 4000864 at *18–*19.

       The magistrate judge only mentioned exhaustion in passing, stating that “[i]f the

Applicant truly wishes to raise the allegations as Fifth, Sixth, and Fourteenth Amendment

violations, then the claim is unexhausted . . . .” Id. at *18. Because Mr. Dungen did not

object to the magistrate judge’s assessment of the merits of claim Six, he did not preserve

that issue for appeal. See Moore, 950 F.2d at 659. Thus, the waiver rule applies to claims

Six, Seven, and Eight.

       We also find no reason to bypass the waiver rule based on the “interests of

justice.” Id. The magistrate judge’s recommendation clearly informed Mr. Dungen about

the time allowed for him to object, as well as the consequences of his failure to object.

Id. at *4. In addition, Mr. Dungen has pointed to no facts or law that cause us to believe

that it would be an injustice for us to dismiss those claims.

B.     Claims Found to be Procedurally Barred

       On the magistrate judge’s recommendation, the district court held that claim One

and claim Five were procedurally barred, along with portions of claim Three and claim

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Seven. Id. at *1. We agree.

       To obtain a writ of habeas corpus in federal court, an applicant first must exhaust

all remedies in state court. 28 U.S.C. § 2254(b)(1)(A). When a prisoner has no further

opportunity to apply for state relief, but has not raised a particular issue in state court,

then those claims technically are exhausted. See Coleman v. Thompson, 501 U.S. 722,

731–32 (1991). However, pursuant to the independent and adequate state grounds

doctrine, the applicant is procedurally barred from bringing such claims in a habeas

petition unless the petitioner “can demonstrate cause for the default and actual prejudice

as a result of the alleged violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.” Banks v. Reynolds, 54

F.3d 1508, 1514 (10th Cir. 1995) (quotations omitted); see also Coleman, 501 U.S. at

729–30.

       The magistrate judge found that claim One, claim Five,1 and portions of claims

Three and Seven were procedurally barred because Mr. Dungen did not properly present

them in state court. Dungen, 2008 WL 4000864 at *6. The district court accepted the

magistrate’s recommendation and dismissed those claims. Id. at *1.

       1
        Mr. Dungen did file a post-conviction motion for a hearing in state court based on
alleged ineffective assistance of counsel (claim Five). However, he did not assert in
either his objections to the magistrate judge’s recommendation, or in this appeal, that he
did not default on this issue. He only argued ineffective assistance of counsel as cause
that excused his default in state court. Therefore, we need not determine whether his
post-conviction motion in state court was adequate to avoid the procedural bar for failing
to exhaust state court remedies. See United States v. Redcorn, 528 F.3d 727, 738 n.4
(10th Cir. 2008) (“Issues not raised in the opening brief are deemed abandoned or
waived.”) (quotations omitted).

                                               -5-
       To obtain a COA to contest any claim in a habeas proceeding, the prisoner must

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

§ 2253(c)(2). When, as here, the district court denies a habeas claim on procedural

grounds, “a COA should issue . . . 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).

Our analysis focuses on whether reasonable jurists could debate the accuracy of the

district court’s conclusions.

       Mr. Dungen does not dispute on appeal that he failed to exhaust the claims in

question in state court; instead, he claims ineffective assistance of counsel as the cause for

his default.2 This argument fails because prisoners have no right to counsel in post-

conviction applications for relief. See Coleman, 501 U.S. at 757 (“Because [the

defendant] had no right to counsel to pursue his appeal in state habeas, any attorney error

that led to the default of [the defendant’s] claims in state court cannot constitute cause to

excuse the default in federal habeas.”). The alleged ineffectiveness of Mr. Dungen’s


       2
        Mr. Dungen also argues that an adverse decision by the Colorado Court of
Appeals was sufficient for him to have exhausted all state remedies. This point, however,
does not change the procedural bar analysis. As noted above, the procedural bar applies
when remedies have technically been exhausted but a particular claim has not been
brought to the state courts’ attention. Under those circumstances, the claim is barred in
federal court under the independent and adequate state grounds doctrine. See Coleman,
501 U.S. at 729–30. The petitioner also asserted “actual innocence” as cause for his
default in the district court but did not reassert that argument on appeal.

                                              -6-
counsel cannot excuse his failure to bring those claims in state court.3 Reasonable jurists,

therefore, could not debate the propriety of the district court’s procedural ruling.

C.     The Properly Preserved Claims

       After the foregoing analysis, we are left with claim Two, portions of claim Three,

and claim Four, all of which the district court denied on the merits. As with a procedural

claim, Mr. Dungen must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the

merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at

484.

       Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

state prisoner is not granted a writ of habeas corpus unless:

       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.

28 U.S.C. § 2254(d). Mr. Dungen does not have to meet that high standard to be entitled

to a COA, but the standard is relevant to our inquiry. The AEDPA provides the standard

under which the district court evaluates habeas claims. Thus, in evaluating the

       3
         Mr. Dungen argues that Silva v. People, 156 P.3d 1164 (Colo. 2007), has created
a right to post-conviction counsel. His argument fails, however, because the right to post-
conviction counsel recognized in Silva was based entirely on a Colorado statute. Id. at
1168. Before announcing that right, the court reiterated that “there is no constitutional
right to post-conviction counsel under . . . the United States Constitution.” Id. at 1167.

                                             -7-
application for a COA, we ask whether reasonable jurists could debate whether the

district court erred when applying 28 U.S.C. § 2254(d). See Miller-El v. Cockrell, 537

U.S. 322, 349 (2003) (Scalia, J., concurring); Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004) (“AEDPA’s deferential treatment of state court decisions must be incorporated

into our consideration of a habeas petitioner’s request for COA.”).

1.     Claim Two

       Mr. Dungen asserts that the jury selection process was racially biased. The record

reflects that there were seven Hispanic persons and one black person in the jury pool.

During peremptory challenges, the prosecution struck the only black juror and five of the

seven Hispanic jurors. The defense struck one Hispanic juror, and one Hispanic juror was

empaneled. The trial court and the Colorado Court of Appeals held that Mr. Dungen had

made a prima facie case for discrimination regarding the black juror, but that the

prosecution had fulfilled its burden to provide a race-neutral explanation. The

prosecution stated that it struck the black juror because he had lied about a prior felony

conviction. The trial court and the Colorado Court of Appeals held that Mr. Dungen had

not made a prima facie case for discrimination with regard to the striking of the five

Hispanic jurors.

       Once a defendant has made a prima facie case for discrimination, the prosecution

must provide a race-neutral explanation for the challenge. Batson v. Kentucky, 476 U.S.

79, 97 (1986). The explanation must do more than simply deny a discriminatory motive,

id. at 98, but the explanation need not be persuasive, or even plausible. Purkett v. Elem,

                                             -8-
514 U.S. 765, 768 (1995). “Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.” Id.

       Here, there is no inherent discriminatory intent in the prosecution’s explanation.

That the potential juror lied about a previous felony conviction is clearly a race-neutral

explanation, and the explanation is sufficient to defeat Mr. Dungen’s claim of

discrimination in striking the black juror. Thus, reasonable jurors could not debate

whether the district court’s decision was contrary to clearly established federal law.

       Regarding the Hispanic jurors, the Colorado courts found that Mr. Dungen had not

made a prima facie case for discrimination. The issue, then, is whether reasonable jurors

could debate whether the district court’s finding—that Mr. Dungen had not made a prima

facie case of discrimination related to the Hispanic jurors—was contrary to clearly

established federal law. See id. The Supreme Court’s decision in Miller-El offers some

guidance.

       In Miller-El, the Court reversed the Fifth Circuit’s denial of a COA to a prisoner.

Miller-El, 537 U.S. at 348. The prisoner claimed discrimination based on the

prosecution’s striking ten of eleven available black jurors. Id. at 331. The court found

that the numbers themselves were some evidence of discrimination. Id. at 342. The

Court did not, however, state that numbers alone could establish discrimination.

Importantly, the Court detailed several other reasons for determining that Mr. Miller-El

should be granted a COA to pursue his discrimination claim: the state’s reasons for

challenging black jurors applied to some white jurors; the prosecutors asked different

                                             -9-
questions to white and black jurors; the prosecutors twice “shuffled” the jury panel when

several black jurors were in the front row; and the petitioner provided historical evidence

of discrimination by the local district attorney’s office. Id. at 343–46.

       In our case, the only evidence of discrimination regarding the Hispanic jurors is

the raw numbers. Mr. Dungen has pointed to no other evidence suggesting discrimination

by the prosecutors. In addition, one Hispanic juror was empaneled, and the defense

struck one Hispanic juror. Our case, therefore, is far different from Miller-El, where

several signs of discrimination were present. Without more evidence of discrimination,

reasonable jurors could not debate whether the district court’s decision was contrary to

clearly established federal law.

2.     Claim Three

       On appeal, Mr. Dungen alleges eight instances of prosecutorial misconduct. He

does not detail those instances, however. He originally asserted ten instances of

prosecutorial misconduct, but the magistrate judge determined that two of those claims

were procedurally barred. See Dungen, 2008 WL 4000864 at *6, *11. The district court

noted Mr. Dungen’s failure to object to the magistrate judge’s findings regarding several

other claims, leaving only three claims preserved.4 Id. at *3. Those claims were 1) that


       4
        Both the magistrate judge and the district court also stated that all ten claims were
arguably unexhausted. However, both judges determined that the claims failed on the
merits. Dungen, 2008 WL 4000864 at *3, *12–*17. Because we agree that the claims
clearly fail on that basis, we need not address the exhaustion issue. See Moore v.
Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002) (stating that a district court may deny a
habeas claim on the merits, even if it is unexhausted).

                                             -10-
during closing arguments the prosecutor referred to photographs that were not admitted

into evidence; 2) that the prosecutor impermissibly vouched for the testimony of a

government witness; and 3) that the prosecutor generally made derogatory remarks about

Mr. Dungen. Id. On appeal, Mr. Dungen offers no facts to support his claim and states

only that “as a whole the cumulative acts denied the Petitioner the right to due process.”

We have reviewed the magistrate judge’s lengthy investigation into the matter and see no

basis for determining that Mr. Dungen has made “a substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2).

3.     Claim Four

       Mr. Dungen’s final preserved claim alleges judicial misconduct, arguing that “the

judges [sic] communication during jury deliberation outside the presence of the court has

denied the Petitioner his due process.” Mr. Dungen appears to be reasserting his

argument that he was denied due process because he was not present when the trial judge

responded to a request submitted by the jury. Dungen, 2008 WL 4000864 at *3. Mr.

Dungen’s counsel was present, however.

       A defendant “has a due process right to be present in his own person whenever his

presence has a relation, reasonably substantial, to the fulness of his opportunity to defend

against the charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quotations omitted).

Here, during the jury’s deliberations, the jury sent a note requesting to see pictures of Mr.

Dungen displaying the murder weapon. Dungen, 2008 WL 4000864 at *17. The court’s

response was simply that the pictures were not in evidence. Id.

                                            -11-
       Mr. Dungen has offered no argument—nor can we imagine one—detailing how his

presence would have made any difference. The court gave a proper answer, in the

presence of Mr. Dungen’s counsel. Mr. Dungen’s presence would have had no relation,

much less a substantial one, to his ability to defend himself. Therefore, he has failed to

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

§ 2253(c)(2).

                                   III. CONCLUSION

       Three of Mr. Dungen’s claims fail because they were not properly preserved in the

district court. Two of his claims fail because the district court properly held them to be

procedurally barred. As to his final three claims, he has failed to demonstrate they meet

the standard for our granting a COA, based on federal statutes and our precedent. For

these reasons, we DENY Mr. Dungen’s application for a COA and DISMISS the appeal.

Mr. Dungen’s motion to proceed in forma pauperis is GRANTED.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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