                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  March 24, 2011
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 ROBIN FARRIS,

          Petitioner-Appellant,

 v.
                                                         No. 11-1001
                                               (D.C. No. 1:08-CV-00986-CMA)
 MARK A. BROADDUS, Warden; and
                                                          (D. Colo.)
 JOHN W. SUTHERS, Attorney
 General of the State of Colorado,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.


      A Colorado jury convicted Robin Farris of first-degree felony murder

during the commission of a burglary, a result the Colorado Court of Appeals

affirmed. After unsuccessfully seeking state post-conviction relief pursuant to

Colo. R. Crim. P. 35(c), Ms. Farris filed a federal habeas petition under 28 U.S.C.

§ 2254, asserting six claims. The district court, however, found that Ms. Farris

had not fairly presented her second, third, and fifth claims to the state courts.



      *
        This order is not binding precedent except under the doctrines of law of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.
Rather than deny her entire petition, however, the court granted Ms. Farris’s

request to allow her to dismiss voluntarily her unexhausted claims, so that she

could proceed with the remaining exhausted claims in her petition. The court

then dismissed Ms. Farris’s sixth claim, holding it was not cognizable on federal

habeas review, and the court denied Ms. Farris’s first and fourth claims on the

merits. The district court thereafter denied Ms. Farris’s application for a

certificate of appealability (“COA”).

      Now before us, Ms. Farris renews her request for a COA. Under the

Antiterrorism and Effective Death Penalty Act, we may issue a COA only if Ms.

Farris makes a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). In addition, for those claims the district court dismissed on

procedural grounds, a COA will issue only if “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). Ms. Farris’s petition fails to clear these

high hurdles.

      In large measure, Ms. Farris seeks to challenge the district court’s

assessment that her second, third, and fifth claims were unexhausted. Upon

finding that Ms. Farris had filed a federal habeas petition containing both

exhausted and unexhausted claims, however, the district court granted Ms.

Farris’s affirmative request “to delete [all] unexhausted claims,” rather than

dismiss the entire petition. See Reply to Resp’t Am. Pre-Answer Resp. at 7

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(Sept. 17, 2008). By electing this course of action, Ms. Farris abandoned her

putatively unexhausted claims, voluntarily dismissing them and so relinquishing

any challenge to the district court’s ruling that those claims were not properly

exhausted. See Buchanan v. Farwell, 308 F. App’x 103, 104-05 (9th Cir. 2009)

(unpublished) (“We need not decide whether Buchanan adequately exhausted his

state court remedies as to this claim, in light of the fact that Buchanan abandoned

his right to proceed in the district court on this and all other claims determined by

the district court to be unexhausted.”). That leaves for us to address Ms. Farris’s

remaining first, fourth, and sixth claims for relief.

      In her first claim, Ms. Farris argued that the state trial court improperly

denied her motion to suppress certain statements she made to police following her

arrest. On direct appeal, the state appellate court acknowledged that Ms. Farris

had asked her interrogator, “When will I go before a judge and when will I get a

lawyer?,” but concluded that “this question did not constitute a clear and

unambiguous request for counsel” and so questioning could continue consistent

with the Fifth Amendment. Aplt. App. Vol. I at 99. Before us, Ms. Farris argues

this decision was “contrary to” or “involved an unreasonable application of” the

Court’s decisions in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v.

Arizona, 451 U.S. 477 (1981). Like the district court, however, we must disagree.

In Edwards, the Court held it was impermissible for authorities to “reinterrogate

an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at

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485 (emphasis added). The Court reaffirmed this point in McNeil v. Wisconsin,

501 U.S. 171, 178 (1991). Accordingly, we cannot say that the state court’s

decision was contrary to or an unreasonable application of the Supreme Court’s

jurisprudence. In fact, our conclusion on this score is only confirmed by the

Court’s later decision in Davis v. United States. See 512 U.S. 452, 459 (1994)

(“We decline petitioner’s invitation to extend Edwards and require law

enforcement officers to cease questioning immediately upon the making of an

ambiguous or equivocal reference to an attorney.”).

      In her fourth claim, Ms. Farris asserts that the prosecution improperly

asked a question at trial commenting on her silence following arrest. Although

Ms. Farris raised this claim on direct appeal, the state appellate court reviewed it

only for plain error, as Ms. Farris had not raised any objection during trial. The

state court ultimately concluded that “such error as may have occurred did not

undermine the fundamental fairness of [Ms. Farris’s] trial so as to constitute plain

error” under the Colorado Rules of Criminal Procedure. Aplt. App. Vol. I at 104.

      We’ve said that the substance of the state’s plain error disposition affects

our review of a habeas claim. For example, when a “state court . . . den[ies]

relief for a federal claim on plain-error review because it finds the claim lacks

merit under federal law,” that “disposition [is] entitled to § 2254(d) deference

because it was a form of merits review.” Cargle v. Mullin, 317 F.3d 1196, 1206

(10th Cir. 2003). On the other hand, if “a state court den[ies] relief for what it

                                         -4-
. . . assumes to be federal error, because of the petitioner’s failure to satisfy some

independent state law predicate,” “that non-merits predicate would constitute an

independent state ground for decision which would warrant application of

procedural-bar principles on federal habeas.” Id.; see also Douglas v. Workman,

560 F.3d 1156, 1177-79, 1180 n.15 (10th Cir. 2009). But whichever situation

pertains here, it doesn’t matter. Ms. Farris offers this court no reason why

Colorado’s plain error regime fails to supply an independent and adequate basis

for the state appellate court’s dismissal, nor has she asserted cause and prejudice

or a fundamental miscarriage of justice to excuse her default. Likewise, she has

failed to explain how the state appellate court’s decision was “contrary to” or “an

unreasonable application of” the Supreme Court’s precedents. 28 U.S.C. §

2254(d)(1).

      Finally, we hold, as did the district court, that Ms. Farris’s sixth claim —

that the state trial court violated state law by dismissing her Rule 35(c) motion

without holding a hearing — is not cognizable on federal habeas review. See

Houston v. Henderson, No. 99-1066, 1999 WL 542637, at *2 (10th Cir. July 27,

1999) (unpublished); Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (“[F]ederal

habeas corpus relief does not lie for errors of state law.”) (citations omitted).




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The application for COA is denied, and this appeal is dismissed.




                               ENTERED FOR THE COURT



                               Neil M. Gorsuch
                               Circuit Judge




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