                    UNITED STATES COURT OF APPEALS
Filed 12/19/96
                                  TENTH CIRCUIT



 PHILLIP RAY MOORE,

        Petitioner-Appellant,
 v.

 WALLIS PARMENTER, Warden, San                              No. 96-1170
 Carlos Correctional Facility, Pueblo,                  (D.C. No. 95-B-3228)
 Colorado; and ATTORNEY                                       (D. Colo.)
 GENERAL OF COLORADO,

        Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **



      Phillip Ray Moore was convicted by a Jefferson County, Colorado jury of

eight felony counts stemming from a violent sexual assault against his wife and




        * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.

       ** After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
daughter. He was sentenced to 72 years. 1 After his conviction and sentence were

affirmed by the Colorado Supreme Court, Moore filed a petition for a federal writ

of habeas corpus pursuant to 28 U.S.C. §§ 2241(a), 2254 (1994) (amended April

24, 1996). The district court denied his petition, but granted Moore a certificate

of probable cause (“CPC”) to appeal the denial. Moore appealed. We affirm the

district court’s denial of Moore’s petition.



                                     Jurisdiction

      On December 27, 1995, the district court granted Moore leave to proceed in

forma pauperis under the former 28 U.S.C. § 1915(a) (1994) (amended April 26,

1996). Moore’s notice of appeal was filed April 22, 1996, four days before the

enactment of the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No.

104-134, Title VIII, 110 Stat. 1321, 1321-66 to 1321-77 (1996). We have not yet

decided whether the filing fee provisions of PLRA § 804 apply to habeas corpus

actions. See Deas v. Wyoming Dep’t of Corrections, 99 F.3d 1149, 1996 WL

606369, at *2 n.1 (10th Cir. Oct. 23, 1996) (table, text in WESTLAW). However,

we have held that the amendments to 28 U.S.C. § 1915 contained in PLRA § 804


      1
        The Colorado Court of Appeals reversed six of the counts, People v.
Moore, 860 P.2d 549, 550 (Colo. Ct. App. 1993), rev’d, 877 P.2d 840 (Colo.
1994), but the Colorado Supreme Court reinstated all eight convictions and the
entire 72 year sentence. People v. Moore, 877 P.2d 840, 841 (Colo. 1994) (en
banc).

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do not apply to any case in which the prisoner-appellant filed his notice of appeal

before April 26, 1996. White v. Gregory, 87 F.3d 429, 430 (10th Cir.), cert.

denied, 65 U.S.L.W. 3399 (U.S. 1996). Thus, we allow Moore to proceed without

complying with PLRA’s amendments to 28 U.S.C. § 1915.

      On April 24, 1996, the district court entered a certificate of probable cause

(“CPC”) dated April 23, 1996, allowing Moore to appeal the denial of his habeas

petition. On the same day, Congress enacted the Habeas Corpus Reform

provisions of the Antiterrorism and Effective Death Penalty Act of 1995

(“AEDPA”), Pub. L. No. 104-132, Title I, 110 Stat. 1214, 1217-26 (1996).

      Under AEDPA § 102, 28 U.S.C.A. § 2253(c) (as amended April 24, 1996),

a certificate of appealability (“COA”) must be issued by a circuit judge in order

for a prisoner to appeal the denial of a habeas petition. 2 We have held, however,

that a CPC issued by the district court is equivalent to a COA. See Lennox v.

Evans, 87 F.3d 431, 434 (10th Cir. 1996). We thus convert the district court’s

CPC to a COA.

      By virtue of his present incarceration, Moore meets the jurisdictional

requirement of 28 U.S.C. § 2241(c)(3) (1994). Thus, we exercise jurisdiction.




      2
        AEDPA § 103, however, amends Fed. R. App. P. 22(b) to allow the
appeal to proceed if a COA is issued by a district or circuit judge.

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                                   Standard of Review

         We will reverse the denial of a habeas petition brought under 28 U.S.C.

§ 2254 only where the petitioner makes “a substantial showing of the denial of a

federal right.” Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (punctuation marks

omitted). As in all appeals, we review questions of law de novo. However, we

presume findings of fact made by the state courts to be correct unless rebutted by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (as amended April 24,

1996).



                                    Pending Motions

         After filing and briefing the present appeal, Moore filed a motion for leave

to proceed in state court, or, in the alternative, to dismiss the appeal without

prejudice. Moore brought these motions after realizing that he had not exhausted

--or even alleged--his ineffective assistance of appellate counsel claim in state

court. Parmenter opposed Moore’s motion, arguing that it would facilitate an

abuse of process. Alternatively, should we grant Moore’s motion to dismiss the

present appeal, Parmenter asks that we dismiss it with prejudice.

         A federal district court has “substantial discretion” in deciding whether or

not to grant a motion for leave to proceed in state court. SEC v. Wencke, 622

F.2d 1363, 1374 (9th Cir. 1980). We think that our discretion to grant or deny


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such a motion filed before us is equally substantial. Exercising this discretion, we

deny Moore’s motion for leave to proceed in state court.

      Technically, Moore does not need any such leave. He is free to bring any

post-conviction proceedings authorized by Colorado law in state court. We note,

however, that, should Moore subsequently attempt to relitigate his claim of

ineffective assistance of appellate counsel in federal court, he will need to meet

the “cause and prejudice” requirements associated with subsequent or abusive

habeas petitions. See generally McCleskey v. Zant, 499 U.S. 467 (1991). In the

meantime, we choose not to stay or delay the present proceeding.

      Moore alternatively moved to dismiss the present appeal without prejudice.

A prisoner’s motion to dismiss his habeas petition without prejudice should be

granted if denying it would abridge “the petitioner's ability to present claims of

constitutional violations . . . merely because the petitioner has unwittingly fallen

into a procedural trap created by the intricacies of habeas corpus law.” Clark v.

Tansy, 13 F.3d 1407, 1409 (10th Cir. 1993). Here, granting Moore’s motion

would pose such a trap. Were we to dismiss the present appeal, the district

court’s order denying Moore’s petition and holding that Moore’s constitutional

claims are now procedurally barred would become final. Any future federal

habeas petition would then be considered subsequent or abusive. Zant, 499 U.S.




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at 489. In essence, such a dismissal would be “with prejudice,” because the

district court ruling would become final.

      Such a result could not possibly benefit Moore. Not only would any

subsequent effort to litigate his ineffective assistance of appellate counsel claim

in the federal courts face the hurdle of being an abuse of the writ, Moore would

also lose the benefit of appellate review of the many underlying substantive

claims which he brought in district court and which were all denied. We do not

believe that Moore intended this result. We thus deny Moore’s motion to dismiss

this appeal.



                           Moore’s Constitutional Claims

      Moore alleges that the Colorado state court proceedings violated his

Fourteenth Amendment right to Due Process of Law, both generally and also as

that Amendment “incorporates” the Sixth Amendment’s guarantees of an

impartial jury, the (effective) Assistance of (appellate) Counsel, and

Confrontation of (adverse) Witnesses, the Fifth Amendment’s bar against Double

Jeopardy, and the Eighth Amendment’s bar against Cruel and Unusual

Punishment. Although several of these claims were stated only in terms of state




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law before the Colorado courts, all but the ineffective assistance of appellate

counsel claim were raised there substantively. 3

      Moore’s general Due Process claim and his Sixth Amendment jury claim

both derive from jury instructions which he characterizes as erroneous. The

Colorado Supreme Court held that the legal theory of complicity articulated in the

jury instructions was proper. See Moore, 877 P.2d at 846-47. We find no

constitutional error in this ruling.

      Moore’s Sixth Amendment Confrontation Clause claim arises from the

admission of videotaped depositions recorded by his minor children shortly after

the sexual assault. The Colorado Court of Appeals found no error, under the

circumstances of the case, in the admission of these materials. Moore, 860 P.2d




      3
          The district court adopted the magistrate judge’s finding that Moore
failed to exhaust any of these claims because “a federal constitutional claim will
not be deemed exhausted unless it has first been postured as a constitutional claim
in a state’s highest court” and that Moore’s claims are procedurally barred under
the “anticipatory denial rule.” (Magistrate’s Recommendation at 4) (citing
Qureshi v. Diesslin, 654 F. Supp. 555, 557 (D. Colo. 1987)). We do not agree
that Moore did not posture any of his claims as federal claims. See e.g. Moore,
877 P.2d at 843-44 (referring to Moore’s double jeopardy claim in federal terms).
However, we need not delve into which of Moore’s federal claims were
exhausted. Under AEDPA § 104(1), “[a]n application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2)
(as amended April 24, 1996).

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at 555. 4   Under Maryland v. Craig, 497 U.S. 836, 852-53 (1990), this result is

clearly sound under federal law.

       Moore’s Double Jeopardy claim stems from the overlapping elements of

some of the counts under which he was charged and convicted. The Colorado

Supreme Court correctly analyzed this claim under the “same elements” test of

Blockburger v. United States, 284 U.S. 299, 304 (1932). See Moore, 877 P.2d at

843-44.

       Under both the former and current (post-AEDPA) versions of 28 U.S.C.

§ 2254(b), the federal court may not grant habeas relief pursuant to any claim not

exhausted in state court. Clark v. Tansy, 13 F.3d 1407, 1409 (10th Cir. 1993).

Moore’s Eighth Amendment claim appears not to have been advanced in state

court, nor does Moore pursue it in this appeal. Thus, it is forfeited. In addition,

we decline to consider Moore’s ineffective assistance of appellate counsel claim,

which was never raised before the present appeal and thus has not been

exhausted.




       4
        The Colorado Supreme Court denied Moore’s petition for writ of
certiorari on this issue. (See Magistrate’s Recommendation at 2).

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                                  CONCLUSION

      Moore’s motion for leave to proceed in state court is denied. His motion to

withdraw this appeal without prejudice is also denied. We affirm the district

court’s denial of his petition for writ of habeas corpus.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




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