                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          SEP 28 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 HENRY L. RUDOLPH,

               Petitioner - Appellant,                  No. 03-4192
          v.                                    (D.C. No. 2:99-CV-371 TC)
 HANK GALETKA,                                              (D. Utah)

               Respondent - Appellee.


                           ORDER AND JUDGMENT           *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



      Henry L. Rudolph appeals the district court’s dismissal of his application

for a writ of habeas corpus under 28 U.S.C. § 2254. A judge of this court granted

a certificate of appealability (COA) on the issue whether the State of Utah

violated Mr. Rudolph’s Fifth Amendment guarantee against double jeopardy

(applied to the States under the Fourteenth Amendment) by subjecting him to

three trials. Mr. Rudolph’s double-jeopardy claims stem from the State’s retrying



      *
       This order and judgment is not binding precedent, except under the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.
him for aggravated burglary after the jury at his first trial acquitted him of

aggravated sexual assault (but convicted him of aggravated burglary and violating

a protective order), and from alleged prosecutorial misconduct that may have led

to the mistrial at his second trial. We exercise jurisdiction under 28 U.S.C.

§ 2253 and affirm. We also deny a COA on all other issues raised in

Mr. Rudolph’s habeas application.

I. BACKGROUND

      A. Facts

      We summarize the facts recited in the Utah Supreme Court’s opinion on the

second direct appeal in this case, State v. Rudolph, 970 P.2d 1221, 1224-25 (Utah

1998): On August 1, 1994, Mr. Rudolph, while the subject of a spousal protective

order, broke into the residence of his estranged wife through a basement window.

When she returned, Mr. Rudolph was waiting for her with a large knife in his

pocket. Upon learning that she was dating a co-worker, he punched her several

times and pushed her onto the sofa.

      Mr. Rudolph produced the knife and forced her to disrobe during the course

of a 20-minute tirade. When he finished berating and threatening her, he ordered

her into the bathroom and forced her to shower while he watched. He then put

down the knife, disrobed, and joined her in the shower. Once inside the shower,

Mr. Rudolph demanded that his estranged wife wash his genitals and perform oral


                                          -2-
sex on him. He then ordered her to lie down in the tub, and engaged her in sexual

intercourse. After the encounter in the bathtub, Mr. Rudolph again forced sexual

intercourse in the bedroom. His estranged wife eventually was able to contact the

police. Upon learning what she had done, Mr. Rudolph attempted to strangle her

and threatened to kill himself. He fled as the police arrived but was apprehended

near the home.

      B. State Court Proceedings

      Mr. Rudolph was charged by information in Utah state court with two

felonies, aggravated burglary and aggravated sexual assault, and one

misdemeanor, violation of a protective order. At trial Mr. Rudolph represented

himself with the assistance of standby counsel. The jury acquitted him of

aggravated sexual assault, but convicted him of aggravated burglary and violation

of a protective order. On appeal the Utah Supreme Court vacated the two

convictions and remanded for retrial because portions of the trial transcript had

been lost as the result of a problem with the court reporter’s computer.

      After undergoing a competency evaluation Mr. Rudolph was permitted to

represent himself again at the second trial. On the first day of the trial, he twice

moved for a mistrial in the presence of the jury. He made the second motion

during the prosecution’s redirect examination of the victim about statements she

had made to Mr. Rudolph’s probation officer; Mr. Rudolph believed that this line


                                         -3-
of questioning violated the Utah rules of evidence. Mr. Rudolph told the court

that he believed the entire trial had been unfair and asked that the judge recuse

himself. The court granted the mistrial, stating, “because of the defendant’s

repeated insinuation and accusation that this court is incapable of giving him a

fair trial, then, in fairness to the defendant, we will grant his motion for a

mistrial, and we will start over.” R., Vol. III, Doc. 66, Addendum at 4-5.

      Although the judge also granted Mr. Rudolph’s motion to recuse, he

remained involved in the case and presided over proceedings in anticipation of a

third trial. Counsel was appointed to represent Mr. Rudolph at trial. Five days

before the scheduled trial date, Mr. Rudolph filed a pro se motion that the judge

recuse himself. On the day of trial, the judge informed the parties that he would

refer the recusal motion to the presiding judge. Both Mr. Rudolph and his

counsel, however, responded that they wished the trial to proceed without further

delay and therefore withdrew the motion. The jury at the third trial convicted

Mr. Rudolph of aggravated burglary and violation of a protective order.

      On appeal to the Utah Supreme Court Mr. Rudolph raised seven issues

through counsel – (1) the judge gave erroneous instructions on the intent element

of burglary, (2) the judge gave an erroneous instruction on the “remaining

unlawfully” element of burglary, (3) there was insufficient evidence to support

the aggravated-burglary conviction, (4) the judge failed to respond to a jury


                                          -4-
question during deliberations, (5) the judge improperly presided over the third

trial after recusing himself during the second, (6) his convictions were barred by

double jeopardy, and (7) there was insufficient evidence of violation of a

protective order. Mr. Rudolph also filed a pro se brief contending that he was the

victim of prosecutorial misconduct. The Utah Supreme Court rejected these

arguments and affirmed the convictions.

      On state-court post-conviction review, Mr Rudolph raised four issues that

he had failed to raise on direct appeal – (1) that issues raised for the first time on

post-conviction review merited consideration because of unusual circumstances,

(2) that the Utah burglary statute was unconstitutionally vague, (3) that he was

denied the right to self-representation, and (4) that he was denied effective

assistance of counsel. The state trial court denied relief and the state supreme

court affirmed. See Rudolph v. Galetka, 43 P.3d 467 (Utah 2002).

      C. Federal Habeas Proceedings

      Mr. Rudolph’s initial pro se habeas application, filed in the United States

District Court for the District of Utah on May 27, 1999, was dismissed without

prejudice on May 23, 2000, for failure to exhaust state-court remedies. After the

denial of his state-court petition for post-conviction relief (filed while the initial

federal habeas proceedings were ongoing), Mr. Rudolph, again proceeding pro se,

filed a motion that the district court construed as a motion to reconsider its


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May 23, 2000, Order. The court granted the motion on the ground that

Mr. Rudolph had now exhausted his state remedies, so the case could be

considered on the merits.

      On July 22, 2003, the district court denied the application. It found seven

of the ten issues raised in the application procedurally barred: (1) that the jury

instructions were unconstitutionally vague, (2) that he was denied a unanimous

verdict, (3) that the Utah burglary statute is unconstitutionally vague, (4) that the

information charging him was unconstitutionally over-broad, (5) that he was

denied the right to represent himself, (6) that he received ineffective assistance of

counsel, and (7) that he was the victim of judicial bias. It rejected on the merits

the other three arguments: (1) violation of the guarantee against double jeopardy,

(2) insufficiency of the evidence, and (3) prosecutorial misconduct.

(Mr. Rudolph’s application actually enumerated 12 arguments, but the district

court considered two of them under “double jeopardy” and two under

“insufficient evidence.”)

      The district court did not address Mr. Rudolph’s request for a COA; hence

on August 27, 2003, this court entered a presumption of denial of a COA by the

district court. A judge of this court granted a COA on the double-jeopardy

arguments raised in the habeas application and appointed counsel to file a

supplemental brief. The State has filed a supplemental brief responding to


                                          -6-
counsel’s arguments. Appointed counsel also filed a motion to remand the

proceedings to the district court for reconsideration of Mr. Rudolph’s double-

jeopardy arguments in light of the entire record.

II. DISCUSSION

      A. Double Jeopardy

             1. Standard of Review

      “[W]e review the [federal] district court's factual findings under a clearly

erroneous standard and its legal conclusions de novo.” Morris v. Burnett, 319

F.3d 1254, 1268 (10th Cir. 2003) (internal quotation marks omitted). In addition,

in § 2254 proceedings the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) requires substantial deference to determinations by the state courts.

Here, the Utah Supreme Court reached the merits of Mr. Rudolph’s double-

jeopardy arguments. In this circumstance, a writ of habeas corpus is

inappropriate

      unless the [state court’s] 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.




                                         -7-
28 U.S.C.A. § 2254(d). Mr. Rudolph, through counsel, asserts that “[t]his case

involves only the ‘unreasonable application’ prong of this standard.” Aplt. Supp.

Br. at 30.

      According to the United States Supreme Court, “Under the ‘unreasonable

application’ clause [of § 2254(d)(1)], a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle from this Court's

decisions but unreasonably applies that principle to the facts of the prisoner's

case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). We are aware, however,

that “[t]he Supreme Court has cautioned that an unreasonable application of

federal law is different from an incorrect or erroneous application of federal

law.” Valdez v. Bravo, 373 F.3d 1093, 1096 (10th Cir. 2004) (internal quotation

marks omitted).

      As for our review of the state courts’ findings of fact, because Mr. Rudolph

is “in custody pursuant to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed to be correct.” 28 U.S.C.

§ 2254(e)(1). “The applicant shall have the burden of rebutting the presumption

of correctness by clear and convincing evidence.” Id.

             2. Merits

      Mr. Rudolph contends that his constitutional guarantee against double

jeopardy was twice violated in the state court proceedings. The first alleged


                                          -8-
violation consisted of retrying him for aggravated burglary after the jury in the

first trial acquitted him of aggravated sexual assault. Mr. Rudolph asserts that the

jury acquitted him of aggravated sexual assault because it found that the sexual

acts with his estranged wife were consensual, thereby negating any intent to

commit a sexual assault. Under the doctrine of collateral estoppel, the first jury’s

finding on the question of intent could not be relitigated. Thus, Mr. Rudolph

argues, he could not be retried for aggravated burglary, because the information

alleged that he committed the offense by unlawfully entering or remaining in his

estranged wife’s residence with the intent to commit a sexual assault.

      The second alleged violation was subjecting him to a third trial after the

court granted a mistrial at the second trial. Mr. Rudolph contends that the trial

court granted the mistrial due to improper statements intentionally made by the

prosecutor with the intent of provoking a mistrial, rendering another trial on the

same charges impermissible.

      Mr. Rudolph’s appointed counsel also argues that the district court could

not adequately consider his double-jeopardy arguments without requesting, sua

sponte, the entire record of state trial proceedings.

                    a. Collateral Estoppel

      On direct appeal the Utah Supreme Court began its consideration of

Mr. Rudolph’s collateral estoppel argument by noting the relevant United States


                                          -9-
Supreme Court decisions, Ashe v. Swenson, 397 U.S. 436 (1970), and Dowling v.

United States, 493 U.S. 342 (1990). See Rudolph, 970 P.2d at 1231. The Court

wrote in Ashe:

      Where a previous judgment of acquittal was based upon a general
      verdict, as is usually the case, [the proper] approach requires a court
      to examine the record of a prior proceeding, taking into account the
      pleadings, evidence, charge, and other relevant matter, and conclude
      whether a rational jury could have grounded its verdict upon an issue
      other than that which the defendant seeks to foreclose from
      consideration. The inquiry must be set in a practical frame and
      viewed with an eye to all the circumstances of the proceedings.

Ashe, 397 U.S. at 444 (internal quotation marks omitted). Dowling provides that

“the burden [is] on the defendant to demonstrate that the issue whose relitigation

he seeks to foreclose was actually decided in the first proceeding.” Dowling, 493

U.S. at 350.

      The Utah Supreme Court concluded that “the jury could have acquitted

Rudolph [of aggravated sexual assault] on another basis that is just as reasonable”

as the victim’s consent. Rudolph, 970 P.2d at 1232. Under Utah law:

      A person commits aggravated sexual assault if in the course of a rape
      or attempted rape, object rape or attempted object rape, forcible
      sodomy or attempted forcible sodomy, or forcible sexual abuse or
      attempted forcible sexual abuse the actor:

               (a) causes bodily injury to the victim;

           (b) uses or threatens the victim with use of a dangerous
      weapon as defined in Section 76-1-601;



                                          -10-
             (c) compels, or attempts to compel, the victim to submit to
      rape, object rape, forcible sodomy, or forcible sexual abuse, by threat
      of kidnapping, death, or serious bodily injury to be inflicted
      imminently on any person; or

             (d) is aided or abetted by one or more persons.

Utah Code Ann. § 76-5-405(1) (1995). Thus, for rape or forcible sodomy to

constitute aggravated sexual assault, the assailant must (1) injure the victim, (2)

threaten the victim with a dangerous weapon, (3) threaten the victim with

kidnaping, death, or serious injury, or (4) have a confederate.

      The Utah Supreme Court focused on statements made by Mr. Randolph’s

standby counsel during closing arguments at the first trial. According to the

court, counsel attacked the State’s proof on the aggravating-circumstances

element of the aggravated-sexual-assault charge:

      First, he [standby counsel] asserted that when Rudolph entered the
      shower, he no longer had the knife with him; it was sitting on the
      counter. Second, he pointed out that there was no evidence that
      Rudolph threatened to kill or harm the victim while he was in the
      shower with her or during intercourse in the bedroom. Finally, he
      maintained that the evidence did not show that Rudolph caused
      bodily injury or harm to the victim during the sexual acts.

Rudolph, 970 P.2d at 1232. Hence, the court held, “Rudolph cannot show that the

jury necessarily acquitted him of aggravated sexual assault on the basis that he

lacked the requisite intent. The acquittal may have been based on the lack of . . .

aggravating circumstances. Collateral estoppel therefore did not preclude his

aggravated burglary conviction.” Id.

                                         -11-
      Mr. Rudolph’s appointed counsel now contends that the district court could

not adequately review the Utah Supreme Court’s application of federal law to the

facts of the case without having the complete record from the first trial before it.

He argues, “Given that the parties disagreed on the arguments made in the

summation, the federal court could not possibly say that the Utah Supreme

Court’s conclusion that the summation belied Mr. Rudolph’s argument was

objectively reasonable.” Aplt. Supp. Br. at 24-25. Appointed counsel asserts that

the district court should have ordered the record from the first trial sua sponte,

and that because it did not, this court should remand the case for reconsideration

in light of the entire record.

      We disagree. Mr. Rudolph provided no reason for the district court to view

the record. If the Utah Supreme Court accurately described the closing arguments

by Mr. Rudolph’s trial counsel, then the collateral-estoppel argument has no

merit. Yet Mr. Rudolph did not challenge that description in district court, nor

did he challenge in his reply brief on direct appeal of his conviction a virtually

identical description of standby counsel’s closing arguments set forth in the

State’s answer brief. We have no reason to doubt the Utah Supreme Court’s

finding that standby counsel attacked the aggravating-circumstances element.

Mr. Rudolph has not even begun to show by clear and convincing evidence, as




                                         -12-
required by 28 U.S.C. § 2254(e)(1), that the Utah Supreme Court erred in its

recitation of facts.

       According to the rules governing habeas applications under § 2254, it is

within the district court’s discretion whether to order transcripts not provided by

the respondent. See Rules Governing Section 2254 Cases in the United States

District Courts, Rule 5 (“The court on its own motion or upon request of the

petitioner may order that further portions of the existing transcripts be

furnished . . . .” (emphasis added)); see also Simental v. Matrisciano, 363 F.3d

607, 612 (7th Cir. 2004) (“While the review of a state court transcript is

occasionally necessary in habeas cases, it is certainly not required and is, in fact,

quite rare.”). The district court did not abuse its discretion here.

       We conclude, as did the federal district court, that Mr. Rudolph has not

demonstrated that the Utah Supreme Court unreasonably applied federal law in

rejecting his collateral-estoppel argument.

                       b. Trial After Mistrial

       For his prosecutorial-misconduct double-jeopardy argument, Mr. Rudolph

relies on the proposition that “a defendant may invoke the bar of double jeopardy

in a second effort to try him [if] the conduct giving rise to the successful motion

for a mistrial was intended to provoke the defendant into moving for a mistrial.”

Oregon v. Kennedy, 456 U.S. 667, 679 (1982); accord United States v. Gonzalez,


                                            -13-
248 F.3d 1201, 1203 (10th Cir. 2001). In Mr. Rudolph’s direct appeal the Utah

Supreme Court stated that “the only question we must decide [to resolve this

double-jeopardy argument] is whether the prosecution or the trial judge

intentionally provoked a mistrial for purposes of affording the State another

opportunity to convict Rudolph.” Rudolph, 970 P.2d at 1232. The court found

that “[t]he record . . . shows that Rudolph himself opened the door into the very

questioning that he now claims was prejudicial and warranted the mistrial.” Id. It

also noted that in granting the mistrial, “[t]he [trial] court did not even allude to

any misconduct by the prosecutor as a basis for the mistrial.” Id. The Utah

Supreme Court held that “[i]n light of the foregoing, Rudolph cannot demonstrate

that the judge or the prosecutor provoked the mistrial, let alone that they did so

intentionally.” Id.

      Although Mr. Rudolph quotes the portion of the trial transcript that

includes the questioning to which he objected and the discussion regarding

whether to grant a mistrial, he fails to provide clear and convincing evidence that

prosecutorial misconduct aimed at provoking a mistrial was the basis for the trial

court’s grant of Mr. Rudolph’s motion for a mistrial. See 28 U.S.C. § 2254(e)(1).

Nor has he suggested where such evidence might appear in the trial record. Thus,

we agree with the district court that habeas relief is unavailable on this ground.

      B. Other Grounds Raised in Habeas Application


                                          -14-
      A judge of this court granted a COA on the issue whether Mr. Rudolph was

subjected to double jeopardy. This panel must now determine whether he is

entitled to a COA on any other issue raised in his habeas application. “A

certificate of appealability 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). To be entitled to a COA on the two issues (insufficiency of the

evidence and prosecutorial misconduct) “[w]here [the] district court has rejected

[his] constitutional claims on the merits,” Mr. Rudolph “must demonstrate that

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

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This

court has determined that because “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of a habeas [applicant’s]

request for COA,” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004), we will

grant a COA “only if reasonable jurists could debate whether the [applicant]

might be eligible for habeas relief – i.e., . . . whether the state court’s decision on

the merits of the [applicant’s] constitutional claim was unreasonable or ran

contrary to clearly established federal law,” id. at 937. To be entitled to a COA

on the seven issues that the district court found procedurally barred, Mr. Rudolph

must “show[], at least, that jurists of reason would find it debatable whether the

[application] states a valid claim of the denial of a constitutional right and that


                                          -15-
jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack, 529 U.S. at 484.

      We recognize that in determining whether to issue a COA, a “full

consideration of the factual or legal bases adduced in support of the claims” is not

required. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Instead, the decision

must be based on “an overview of the claims in the habeas [application] and a

general assessment of their merits.” Id.

      After reviewing Mr. Rudolph’s brief, we conclude that he has failed to

“demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims [of insufficiency of the evidence and prosecutorial

misconduct] debatable or wrong.” Slack, 529 U.S. at 484. Regarding the seven

claims that the district court found procedurally barred, we conclude that he has

failed to “show[], at least, that jurists of reason would find it debatable whether

the [application] 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.” Id.

      We will not consider any issues contained in Mr. Rudolph’s appellate brief

that were not presented to the district court. See Walker v. Mather (In re

Walker), 959 F.2d 894, (10th Cir. 1992). For substantially the same reasons

provided in the district court’s July 22, 2003, Order, we deny Mr. Rudolph’s


                                           -16-
request for a COA on the issues other than double jeopardy raised in his habeas

application.

III. CONCLUSION

      We AFFIRM the district court’s order dismissing Mr. Rudolph’s habeas

application. We DENY a COA on all grounds other than double jeopardy raised

in the application. Mr. Rudolph’s motion to remand the case to the district court

for reconsideration based on the entire record, or to supplement the record on

appeal, is DENIED. We DENY the motion to disqualify Judge Murphy (filed

6/25/04) and the August 18, 2004, motion tendering Mr. Rudolph’s pro se

pleading.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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