                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                         UNITED STATES COURT OF APPEALS February 7, 2013
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 FREDRIC VINCENT SACCATO,

           Petitioner-Appellant,

 v.                                                      No. 12-8023 & 12-8067
                                                     (D.C. No. 2:11-CV-00092-CAB)
 EDDIE WILSON, Warden of the                                    (D. Wyo.)
 Wyoming State Penitentiary; GREGORY
 A. PHILLIPS, Attorney General of the
 State of Wyoming,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


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


       Fredric Saccato, a Wyoming state prisoner proceeding pro se, requests a certificate

of appealability (COA) to appeal the district court’s dismissal of his application for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. We deny a COA and dismiss this matter.

                                      I. Background

       Saccato pled guilty in Wyoming state district court to one count of aggravated

homicide by vehicle and three counts of aggravated assault and battery. He was



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
sentenced to a term of incarceration of eighteen to twenty years on the count of

aggravated homicide by vehicle, and a term of incarceration of eight to ten years on each

of the remaining three counts. The aggravated homicide by vehicle sentence was ordered

to be served concurrently with two of the three aggravated assault and battery charges,

and the third aggravated assault and battery sentence was ordered to be served

consecutively with the other sentences. The term of incarceration for the third aggravated

assault and battery charge was suspended, and in its place, he was sentenced to ten years

of supervised probation.

       Saccato filed a direct appeal with the Wyoming Supreme Court. Saccato’s

attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that

there were no meritorious issues for appeal and requesting withdrawal of counsel. The

Wyoming Supreme Court granted counsel’s request to withdraw and ordered that

Saccato’s judgment and sentence will be affirmed unless Saccato is able to persuade the

court that an appeal would not be “wholly frivolous.” ROA Vol. 1 at 362. Saccato then

filed a brief in opposition to his attorney’s Anders brief. The Wyoming Supreme Court

reviewed Saccato’s abuse of discretion in sentencing claims regarding the prosecutor’s

statements concerning good time credits, as well as his claim regarding sentencing

proportionality. The Wyoming Supreme Court found no sentencing error by the state

district court because there was no indication the state district court relied on the

prosecutor’s statements when imposing Saccato’s sentence, and that Saccato’s sentence

was “not extreme or unusual when compared to the gravity of the offense.” Id. at 382.

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The Wyoming Supreme Court held that Saccato “has not provided any reason to conclude

that his appeal has merit.” Id. The Wyoming Supreme Court then affirmed the state

district court’s judgment and sentence. Saccato did not file postconviction relief with the

Wyoming state court.1

       On March 16, 2011, Saccato filed a habeas petition pursuant to 28 U.S.C. § 2254

in federal district court, alleging six claims for relief:

               (1)    Whether he received ineffective assistance of appellate
                      counsel in violation of the Sixth Amendment when his
                      appellate attorney filed the Anders brief with the
                      Wyoming Supreme Court;
               (2)    Whether the trial court erred in advising Mr. Saccato
                      he would earn up to 2/3 off his sentence as “good
                      time” when only 1/3 of his time could be taken off as
                      “good time”;
               (3)    Whether he received ineffective assistance of trial
                      counsel in violation of the Sixth Amendment, and did
                      not receive due process when his attorney advised him
                      he would serve only 1/3 of his sentence with “good
                      time” when in fact he would serve at least 2/3 of his
                      sentence with “good time” credit applied;
               (4)    Whether his plea was unknowing and involuntary
                      because the trial judge did not inform Mr. Saccato he
                      could “cap” the plea agreement;
               (5)    Whether the prosecutor violated Mr. Saccato’s right to

       1
          The exhaustion requirements of 28 U.S.C. § 2254 do not require Saccato to seek
postconviction relief in state court prior to filing his federal habeas petition if the state
court had already ruled on his claims. “It is not necessary . . . for the prisoner to ask the
state for collateral relief, based on the same evidence and issues already decided by direct
review. . . .” Brown v. Allen, 344 U.S. 443, 447 (1953). See also Castille v. Peoples, 489
U.S. 346, 350 (1989) (“[O]nce the state courts have ruled upon a claim, it is not necessary
for a petitioner ‘to ask the state for collateral relief, based upon the same evidence and
issues already decided by direct review.’” (quoting Brown, 344 U.S. at 447)); Bear v.
Boone, 173 F.3d 782, 785 n.3 (10th Cir. 1999); Bodine v. Warden of Joseph Harp
Correction Center, 217 F. App’x 811, 812 n.1 (10th Cir. 2007).

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                      counsel when the prosecutor used his statement to
                      police against him even though it was known he was
                      intoxicated when he gave the statement; and
               (6)    Whether Mr. Saccato’s sentence was excessive when
                      viewed in light of his youth, lack of a violent criminal
                      record, and when compared to other sentences received
                      by other defendants in similar circumstances.

Id. at 452-53. In response to Saccato’s habeas petition, the government filed a motion to

dismiss claims two and four through six, and a motion for summary judgment for claims

one and three.

         On February 28, 2012, the district court granted the government’s motion for

summary judgment on claims one and three, and denied Saccato’s claims of ineffective

assistance of appellate and trial counsel. On March 26, 2012, Saccato filed a notice of

appeal with this court, appealing from the district court’s order granting motion for

summary judgment. Because the district court had disposed of only two of the six claims,

we abated Saccato’s appeal to provide him an opportunity to obtain either a final

judgment or a Fed. R. Civ. P. 54(b) certification. On August 15, 2012, the district court

dismissed the remaining four claims of Saccato’s habeas petition and denied a COA.

Saccato then filed a second notice of appeal from the district court’s order dismissing the

remaining claims. Saccato’s first and second appeals are now consolidated before this

court.

                                        II. Analysis

         Saccato seeks a COA on the same issues that he raised in his federal habeas




                                              4
petition filed in district court.2 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, 336 (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, Saccato must make “a substantial showing of the denial of a constitutional right.”

       2
         Saccato makes the following arguments before this court:
               [(1)] The State of Wyoming violated the Petitioner’s right to
                       appellate counsel under the Sixth Amendment to the
                       U.S. Constitution, by appellate counsel using the
                       wrong standard when assessing and determining not to
                       argue the appeal.
               [(2)] The State of Wyoming violated the Petitioner’s right to
                       appellate counsel under the Sixth Amendment to the
                       U.S. Constitution, by appellate counsel failing to argue
                       on appeal that the defense attorney and the prosecutor,
                       while the judge remained silent, misadvised that
                       Petitioner would be eligible for twice the “good time”
                       he is actually eligible for; coupled with the failure of
                       trial defense counsel to tell the Petitioner that he could
                       “cap” the maximum sentence, all of which failures
                       resulted in a plea that was unknowing and thus
                       involuntary.
               [(3)] The State of Wyoming violated the Petitioner’s right to
                       appellate counsel under the Sixth Amendment to the
                       U.S. Constitution, by appellate counsel failing to argue
                       on appeal that the prosecutor had used a statement by
                       the Petitioner when he was intoxicated and
                       unrepresented by counsel, and misrepresented that
                       statement’s content to the court on sentencing.
               [(4)] The State of Wyoming violated the Petitioner’s right to
                       appellate counsel under the Sixth Amendment to the
                       U.S. Constitution, by appellate counsel’s failure to
                       argue on appeal the harshness of Petitioner’s sentence
                       of 18 to 20 years, which was excessive under Solem v.
                       Helm, 463 U.S. 277 (1983).
Aplt. Br. at vii-viii.

                                               5
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).

       Saccato has not made this showing. We agree with the district court that claims

two, four, five, and six are state law claims not cognizable in a federal habeas action.

These claims implicate state law and policy governing sentencing and plea agreements.

See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.”).

       Saccato’s remaining two claims allege ineffective assistance of counsel. To

establish ineffective assistance of counsel, Saccato must show that “counsel’s

performance was deficient” and that “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (10th Cir. 1984). This court has reviewed

Saccato’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 Saccato is not entitled to a COA on these claims. The district

court’s resolution of Saccato’s claims is not reasonably subject to debate and the claims

are not adequate to deserve further proceedings. Even if we were to assume, without

deciding, that his counsel on direct appeal misapplied the Anders standard, the Wyoming

                                              6
Supreme Court, nonetheless, went to the merits of Saccato’s issues regarding sentencing

and found them to be without merit. And, as regards Saccato’s contention that his trial

attorney misadvised him regarding the effect good time credits would have on his

sentence, the state district court repeatedly and correctly described the potential penalties

Saccato faced should he plead guilty. Accordingly, Saccato 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).

                                      III. Conclusion

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

DISMISS this matter.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge




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