                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               September 23, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT


 DONALD R. GONZALES,

       Petitioner-Appellant,

 v.
                                                        No. 10-1250
 WARDEN HARTLEY; THE
                                              (D.C. No. 1:09-CV-01090-ZLW)
 ATTORNEY GENERAL OF THE
                                                         (D. Colo.)
 STATE OF COLORADO,

       Respondents-Appellees.



                                     ORDER


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      This matter is before the court on appellant’s motion to amend. Upon

consideration, the request is granted. Accordingly, we have amended the Order

Denying Certificate of Appealability we originally filed on September 8, 2010.

The newly amended version is attached to this order. The clerk is directed to file

the amended order nunc pro tunc to the original filing date.

                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge
                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 8, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 DONALD R. GONZALES,

          Petitioner-Appellant,

 v.
                                                        No. 10-1250
 WARDEN HARTLEY; THE
                                              (D.C. No. 1:09-CV-01090-ZLW)
 ATTORNEY GENERAL OF THE
                                                         (D. Colo.)
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.




      On December 1, 2004, a Colorado jury convicted Donald Gonzales of

second-degree assault and violation of a protective order. He was sentenced to

consecutive terms of sixteen years’ imprisonment on the assault conviction and

two years’ imprisonment for violating the protective order. The Colorado Court




      *
        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.
of Appeals affirmed the convictions, People v. Gonzales, No. 05CA0551 (Colo.

Ct. App. June 19, 2008), and the Colorado Supreme Court denied certiorari.

      While his direct appeal was pending, Mr. Gonzales pursued multiple

collateral attacks on his convictions under Colo. R. Crim. P. 35(c). Mr. Gonzales

also brought a state habeas corpus petition. This petition was denied, and Mr.

Gonzales did not appeal.

      Mr. Gonzales subsequently filed a pro se habeas petition under 28 U.S.C.

§ 2254 in the United States District Court for the District of Colorado. The

district court denied his petition, Gonzales v. Hartley, 2009 WL 3048450

(D. Colo. 2009) (unpublished), ruling that Mr. Gonzales failed to exhaust his state

remedies, was procedurally barred from bringing his current claims in any future

postconviction proceedings, and had not overcome procedural default by

demonstrating cause and prejudice or a miscarriage of justice.

      We granted a certificate of appealability (COA) and reversed. Gonzales v.

Hartley, 361 F. App’x 955 (10th Cir. 2010) (unpublished). We remanded to the

District Court to consider: 1) whether Mr. Gonzales’s habeas petition had

satisfied the exhaustion requirement and 2) whether ineffectiveness of Mr.

Gonzales’s appellate counsel excused Mr. Gonzales’s procedural default.

      In a fourteen-page opinion, the District Court answered both these

questions in the negative and again denied Mr. Gonzales’s petition. Mr. Gonzales

now requests a COA to appeal the district court’s ruling on remand. Construing

                                        -2-
Mr. Gonzales’s pro se petition with the solicitude it deserves, see Van Deelen v.

Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.2007), we decline to issue a COA for

substantially the same reasons as those stated by the district court.

      A COA may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We have held that

under this standard an applicant must show “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.” United States v. Taylor, 454 F.3d 1075, 1078

(10th Cir.2006) (internal quotation omitted). When a district court has dismissed

a habeas petition on procedural grounds, a COA will issue only when “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, 484 (2000).

      The district court correctly held that it was barred from reviewing Mr.

Gonzales’s habeas petition because Mr. Gonzales has never subjected his claims

to one complete round of Colorado’s established appellate review process. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Although Mr. Gonzales

presented some of these claims in his 35(c) motion, he failed to appeal them after

that motion was denied. Meanwhile, he presented a different subset of the instant

                                         -3-
claims in his 35(c) appeal, without first having presented them in his original

motion. Because he did not present and appeal any one of these claims, none has

been subjected to a complete round of Colorado’s established review process.

Because Colorado law now prevents him from presenting these claims, see Colo.

R. Crim. P. 35(c)(3)(VII), all of Mr. Gonzales’s current objections are

procedurally defaulted. See Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.

2008).

         Mr. Gonzales can overcome procedural default only by demonstrating

“cause and prejudice or a fundamental miscarriage of justice.” Id. For a

petitioner to show cause he must demonstrate that “some objective factor external

to the defense impeded [his] efforts to comply” with the state law. Murray v.

Carrier, 477 U.S. 478, 488 (1986). And for a petitioner to show prejudice, he

must show that he suffered “actual prejudice as a result of the alleged violation of

federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). The fundamental

miscarriage of justice exception, meanwhile, is “a narrow exception to the cause

requirement where a constitutional violation has probably resulted in the

conviction of one who is actually innocent of the substantive offense.” Dretke v.

Haley, 541 U.S. 386, 393 (2004) (internal quotation marks omitted).

         Mr. Gonzales appears to allege that his procedural default was caused by

ineffective assistance of counsel. It is surely true that ineffective assistance of

counsel can constitute the “cause” necessary to excuse procedural default at trial

                                          -4-
or on direct appeal. Murray, 477 U.S. at 488. Mr. Gonzales cannot, however,

invoke ineffective counsel as cause for any procedural default that occurred in his

35(c) motions, 35(c) appeal, or state habeas petition, because there is no Sixth

Amendment right to counsel in these proceedings. See Coleman, 501 U.S. at 753-

54. And before Mr. Gonzales can use ineffective assistance of trial or appellate

counsel to establish cause for his procedural default, he must first present this

argument as an independent claim to the state court. See Murray, 477 U.S. at

488-89.

      Mr. Gonzales has not done this. If, as he claims, he is now procedurally

barred from alleging the ineffectiveness of his appellate counsel, he must show

cause and prejudice excusing this default. In other words, Mr. Gonzales would

need to show cause and prejudice for failing to attack the effectiveness of his

appellate counsel in his prior postconviction proceedings, in order to show cause

and prejudice for failing to exhaust state remedies for the objections he now

makes before us. The district court correctly noted that Mr. Gonzales has not

offered such a showing.

      Neither has Mr. Gonzales demonstrated that failure to review his claim

would result in a fundamental miscarriage of justice. Mr. Gonzales argues that

the withheld evidence would have supported his heat of passion defense and

called into doubt the seriousness of his wife’s injuries. But these defenses

challenge the legal classification of his conduct, not Mr. Gonzales’s factual

                                         -5-
innocence. As we have previously explained, arguments premised on legal

mitigation alone do not satisfy the fundamental miscarriage of justice exception.

See Ellis v. Hargett, 302 F.3d 1182, 1186 n. 1 (10th Cir. 2002) (rejecting

miscarriage of justice argument because it merely “assert[s] that [petitioner] is

legally innocent because his conduct is justified or mitigated by the doctrines of

self-defense or heat of passion”); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.

2000) (“Mr. Beavers does not claim that he is innocent of killing Raymond

Matthews. Rather, he claims that he is not guilty of first degree murder because

he was intoxicated and acted in self defense. However, these arguments go to

legal innocence, as opposed to factual innocence.”).

      Because Mr. Gonzales has failed to excuse his various procedural defaults,

the district court's decision is not reasonably debatable. Accordingly, we are

obliged to deny his request for COA and to dismiss his appeal. We grant his

motion to proceed in forma pauperis.



                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




                                         -6-
