                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 4 2001
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 JOSE V. GARZA,

          Petitioner-Appellant,
                                                       No. 00-4155
 v.
                                                   (D.C. No. 00-CV-360)
                                                         (D. Utah)
 STATE OF UTAH,

          Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Petitioner Jose V. Garza (“Petitioner”) filed a Petition for a Writ of Habeas

Corpus by a Person in State Custody pursuant to 28 U.S.C. §2254, in which he

requested relief from his sentence of 5-to-99 years on a state conviction of

aggravated sexual assault. Petitioner asserted that he was convicted on charges

contained in an Information which the court at his preliminary hearing had



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
ordered amended due to a lack of probable cause, but which the prosecution failed

to amend before trial.

      Petitioner was charged with, and convicted of, aggravated sexual assault.

The statute under which Petitioner was convicted included the following relevant

language:

      (1) 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;
              ...
      (2) Aggravated sexual assault is a first-degree felony punishable by
      imprisonment for a term which is a minimum mandatory term of 5,
      10, or 15 years and which may be for life.

See Utah Code Ann. §76-5-405. 1 In Utah, a charge of aggravated sexual assault

may therefore be predicated on any one of a number of underlying sexual crimes

including rape or attempted rape, and forcible sexual abuse or attempted forcible

sexual abuse. See Utah Code Ann. §76-5-405(1). It appears that in Petitioner’s

case, the State initially charged him with both rape or attempted rape and forcible

sexual abuse or attempted forcible sexual abuse as underlying, predicate offenses

for a charge of aggravated sexual assault. At the preliminary hearing, the court

determined that probable cause did not exist on the underlying offense of rape or


      1
         The phrase in §76-5-405(2) imposing “a minimum mandatory term of 5,
10, or 15 years and which may be for life” was amended in 1996 to read “an
indeterminate term of not less than 6, 10, or 15 years and which may be for life”

                                        -2-
attempted rape, but that probable cause did exist on the underlying offense of

forcible sexual abuse. The court ordered that the prosecution amend the

Information to reflect its ruling that probable cause existed only on the

underlying, predicate offense of forcible sexual abuse to support a charge of

aggravated sexual assault, and bound Petitioner over for trial on the amended

charge.

      Petitioner asserts that the prosecution did not amend the Information as

instructed and that on March 7, 1988, he was convicted of aggravated sexual

assault based upon the underlying, predicate offense of rape or attempted rape

rather than forcible sexual abuse. Petitioner argues that, because of the mistake

regarding which underlying, predicate offense supported his conviction of

aggravated sexual assault, his sentence for aggravated sexual assault was

increased from 1-to-15 years (the penalty range for the second-degree felony of

forcible sexual abuse, see Utah Code Ann. §76-3-203(2)) to 5-to-99 years (the

penalty range for the first-degree felony of rape or attempted rape, see Utah Code

Ann. §76-3-203(1)).

      Petitioner filed a direct appeal of his conviction in the Supreme Court of

Utah, but his conviction was affirmed by that court on December 6, 1989.

Petitioner apparently later filed a motion to modify or vacate his sentence in the

Third District Court of Utah, which denied the motion on November 17, 1999.


                                         -3-
Petitioner appealed that decision to the Supreme Court of Utah, which rejected his

claim because the motion to modify or vacate his sentence was not filed within 30

days of the final order in Petitioner’s criminal case.

      Petitioner then filed this habeas petition in federal court pursuant to 28

U.S.C. §2254 on April 25, 2000. With Petitioner’s consent, the case was assigned

to United States Magistrate Judge Samuel Alba on May 5, 2000. See Garza v.

Utah, No. 2:00-CV-00360 (D. Utah May 5, 2000) (order transferring case to U.S.

Magistrate). The Magistrate Judge issued an order denying the Petition on June

26, 2000. See Garza v. Utah, No. 2:00-CV-00360, slip op. at 1 (D. Utah June 26,

2000). The Magistrate Judge found that Petitioner had not exhausted his state

remedies as required by 28 U.S.C. §2254(b)-(c), because he had not presented the

issues on which he sought relief to the Supreme Court of Utah. The Petitioner

filed a Motion for Reconsideration. In response, the Magistrate Judge issued a

second order in which he acknowledged that Petitioner may have “exhausted his

state remedies,” but held that the petition must nevertheless “be dismissed based

upon procedural default.” See Garza v. Utah, No. 2:00-CV-00360, slip op. at 1

(D. Utah Aug. 16, 2000). The court noted that Petitioner’s second appeal to the

Supreme Court of Utah was dismissed for lack of jurisdiction because his motion

to modify or vacate his sentence was filed more than 30 days after the entry of the

final order. See id. at 2. The court further noted that Petitioner had not alleged


                                         -4-
cause for his untimely presentation of the claims raised in his habeas petition

because his only stated explanation, that he was “not allowed law books so [he

had] to go through a contract attorney contracted by the prison,” was not an

“objective factor external to the defense [that] impeded his counsel or his efforts

to comply with the state procedural requirements.” See id. at 3 (quoting Coleman

v. Thompson, 501 U.S. 722, 750 (1991)). The district court thus denied

Petitioner’s motion for reconsideration. See id. at 4.

      Petitioner then filed an Application for a Certificate of Appealability

(“COA”) with this court. 2 This court may issue a COA “only if the applicant has

made a substantial showing of a denial of a constitutional right.” See 28 U.S.C.

§2253(c)(3). Petitioner has not made such a showing.

      In regard to the procedural bar, attached to Petitioner’s Application for

COA are three pages of what appears to be his brief on direct appeal to the

Supreme Court of Utah. In that brief, Petitioner’s counsel identifies as one point

of error the fact that the prosecution did not amend the Information as instructed

by the court following Petitioner’s preliminary hearing and that the prosecutor

subsequently argued to the jury charges not included in the Information. It



      2
         Because this habeas petition was filed after April 24, 1996, the effective
date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s
provisions apply to this case. See, e.g., Rogers v. Gibson, 173 F.3d 1278 (10th
Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).

                                         -5-
therefore appears that Petitioner’s counsel may have adequately raised on direct

appeal the issue of which Petitioner currently complains. If that is the case, then

the issue may not be procedurally barred as determined by the district court. 3

      We need not conclusively decide whether Petitioner’s claims are

procedurally barred to resolve this case, however, because Petitioner’s claims are

clearly not meritorious. See 28 U.S. §2254(b)(2) (stating “an application for a

writ of habeas corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust”); see also Rogers v. Gibson, 173 F.3d 1278, 1287 n.7

(10th Cir. 1999) (noting that, regardless of habeas petitioner’s failure to exhaust

state court remedies, a federal court may deny habeas relief on meritless claims).

      Petitioner argues that the prosecution’s failure to amend the Information

resulted in his being sentenced on the charge of rape or attempted rape, for which

probable cause was not found at the preliminary hearing, rather than on the charge


      3
         If the claim was not raised on direct appeal and was not otherwise
presented to the state courts in a timely manner, then it is procedurally barred
unless Petitioner can show cause for his failure to develop his claims in state
court and actual prejudice resulting from the errors of which he complains. See
Keeney v. Tamayo-Reyes, 504 U.S. 1, 6-10 (1992). Under our obligation to
construe pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-19
(1972), it appears that Petitioner may be asserting ineffective assistance of
appellate counsel to show cause for any asserted procedural default. See Garza v.
Utah, No. 2:00-CV-00360, slip op. at 3 (D. Utah Aug. 16, 2000) (quoting
Petitioner as stating that he is “not allowed law books so [he has] to go through a
contract attorney contracted by the prison”). It therefore appears that Petitioner
may be alleging cause for any potential procedural default. He has not, however,
either expanded upon this argument or attempted to demonstrate actual prejudice.

                                         -6-
of forcible sexual abuse, for which probable cause was found at the preliminary

hearing. We believe Petitioner may be confused about what charge formed the

basis of the court’s sentencing decision. At all times, the criminal offense with

which Petitioner was charged was aggravated sexual assault; the offenses of

forcible sexual abuse, and rape or attempted rape, were merely underlying,

predicate offenses to the crime of aggravated sexual assault. Indeed, Petitioner

himself conceded in his habeas petition that he was convicted not of either of

those lesser charges, but of aggravated sexual assault. Accordingly, despite what

Petitioner now contends, he was never eligible for the 1-to-15 year sentence that

would have been imposed had he been convicted only of forcible sexual abuse,

because he was neither charged nor convicted of that offense. Instead, he was

always charged with, and convicted and sentenced for, aggravated sexual assault.

      Under Utah law, aggravated sexual assault is a first-degree felony which, at

the time of Petitioner’s sentencing, carried a sentencing range of “a minimum

mandatory term of 5, 10, or 15 years and which may be for life.” See Utah Code

Ann. §76-5-405 (1953) (amended in 1996 to read “an indeterminate term of not

less than 6, 10, or 15 years and which may be for life”). Petitioner’s sentence of

5-to-99 years is thus the appropriate sentencing range for the crime of aggravated

sexual assault regardless of whether the aggravated sexual assault is based upon

the underlying, predicate offense of rape or attempted rape, or the underlying,


                                        -7-
predicate offense of forcible sexual abuse. Indeed, in receiving a sentence of 5-

to-99 years, Petitioner received the lowest mandatory minimum sentence allowed

by statute (5 years) for a conviction of aggravated sexual assault. 4

      For the foregoing reasons, we find that Petitioner has not demonstrated that

he was injured by the actions of which he complains, and thus has not made a

“substantial showing of a denial of a constitutional right.” The requested

certificate of appealability must be denied and this appeal is DISMISSED.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




      4
         Utah law also provides that where “the statute under which the defendant
was convicted mandates that one of three stated minimum terms shall be imposed,
the court shall order imposition of the term of middle severity unless there are
circumstances in aggravation or mitigation of the crime.” See Utah Code Ann.
§76-3-201(6)(a). It appears that Petitioner’s crime must have involved mitigating
circumstances which caused the court in this case to deviate from the “term of
middle severity” (10 years) in order to give Petitioner the lowest minimum
sentence possible.

                                         -8-
