                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      October 11, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 TO N Y A LEX A N D ER HA M ILTON,

                 Petitioner - A ppellant,                No. 06-4145
          v.                                              (D. Utah)
 M IKE CHABRIES, Executive                       (D.C. No. 2:03-CV -757-TS)
 Director, Department of Corrections of
 the State of Utah,

                 Respondent - Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Tony Alexander Hamilton was convicted in Utah state court on charges of

criminal trespass, attempted aggravated murder, aggravated assault, killing of a

police dog, and interfering with an arresting officer. He sought relief in the




      *
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
United States District Court for the District of Utah under 28 U.S.C. § 2254, and

the district court denied the application.

      M r. Hamilton now requests a certificate of appealability (COA) to appeal

the district court's denial of his application for relief. See 28 U.S.C. § 2253(c)

(requiring COA to appeal denial of § 2254 application). He asserts before us

claims alleging violations of (1) the Due Process Clause, (2) the Fourth

Amendment, (3) the Fifth A mendment, and (4) the Establishment Clause. He also

argues that (5) his warrantless arrest was unlawful; (6) law-enforcement

authorities conspired to take him by force; (7) the trial judge w as biased; (8) there

remained factual disputes regarding the circumstances of the arrest, including the

possibility that the police dog was killed for euthanasia purposes;

(9) he should not have been convicted of criminal trespass because he owned the

property; (10) the state was equitably estopped from charging him with criminal

trespass; (11) a faulty jury instruction denied him his defense of self-defense; (12)

insufficient evidence supported his convictions; and (13) he received ineffective

assistance of counsel because his attorney failed to object to a jury instruction on

self-defense, did not question witnesses regarding an allegedly fraudulent tax

deed, and neglected to put on evidence regarding the police officer's training.

      W e deny a COA and dismiss the appeal.




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I.    B ACKGR OU N D

      M r. Hamilton's religious group, the Fraternity of Preparation (Fraternity),

purchased Vance Springs, a tract of property in Beaver County, Utah, where

members of the Fraternity resided. Because the Fraternity refused to pay property

taxes, the county sold the tract in a tax sale, and title to the land was quieted in a

series of default judgments. M r. Hamilton continued to squat on the land, being

forcibly removed and convicted of criminal trespass on one occasion. Upon

release from his imprisonment on that conviction, however, he returned to Vance

Springs. On September 9, 1999, sheriff's deputies came to Vance Springs once

again to evict M r. Hamilton. W hile resisting arrest, he shot a deputy, assaulted

another deputy, and killed a police dog. His convictions for those acts are the

subject of this case.

      Before the Utah Supreme Court, M r. Hamilton challenged his conviction on

several grounds: (1) that the criminal-trespass conviction should have been

dismissed because as a matter of law he was lawfully present on his own property

(the tax sale having been invalid); (2) that the State should have been equitably

estopped from prosecuting him for trespass because the State had acknowledged

that the statute cited in the tax deed was incorrect; (3) that insufficient evidence

supported his criminal-trespass conviction; (4) that insufficient evidence

supported the trial court's decision to submit to the jury the charges of aggravated

murder, aggravated assault, killing the police dog, and interfering with an

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arresting officer; and (5) that the trial court erred in its jury instructions regarding

self-defense and justification. See State v. Hamilton, 70 P.3d 111, 114, 117-24

(Utah 2003).

      In his § 2254 application M r. Hamilton reasserted those claims, and added

several that he had not pursued in state court: (1) that he received ineffective

assistance of counsel; (2) that he was arrested without a w arrant; (3) that a

conspiracy existed to take him by force; (4) that the state trial judge was biased;

and (5) that factual disputes remained regarding the details of the arrest.

II.   STANDA RD O F REVIEW

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing 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.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

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correct in its procedural ruling.” Id. “W here a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further .” Id.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court's decisions but unreasonably applies that
      principle to the facts of the prisoner's case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (internal quotation marks,

brackets, and citations omitted). Therefore, for those of M r. Hamilton's claims



                                           -5-
that were adjudicated on the merits in state court, “AEDPA 's deferential treatment

of state court decisions must be incorporated into our consideration of [his]

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

III.   D ISC USSIO N

       W e need not address the claims first raised by M r. Hamilton in his

application for a COA— alleged violations of due process, the Fourth and Fifth

Amendments, and the Establishment Clause. See Parker v. Scott, 394 F.3d 1302,

1307 (10th Cir. 2005) (claims raised for the first time on appeal are deemed to be

waived).

       The district court disposed of four of M r. Hamilton's claims— that the arrest

was unlawful, that a conspiracy against him existed, that the state trial judge was

biased, and that there were factual disputes surrounding the circumstances of the

arrest— on procedural grounds. The court held that these claims were not

exhausted in state court and would now be procedurally barred were they

remanded to that court. See Utah Code Ann. § 78-35a-106(1)(c) (2006) (“A

person is not eligible for relief under this chapter upon any ground that . . . could

have been but was not raised at trial or on appeal . . . .”). Accordingly, he could

pursue those claims in federal court only by showing cause and prejudice or a

fundamental miscarriage of justice. See Thom as v. Gibson, 218 F.3d 1213, 1221

(10th Cir. 2000). Because he made no attempt in district court to make such a




                                         -6-
showing, the district court properly denied relief. No reasonable jurist could

disagree with the decision of the district court on these matters.

      The district court also ruled that one of the claims presented by

M r. H amilton to the Utah Supreme Court was procedurally barred. The Utah

Supreme Court had held that because M r. Hamilton had failed to appear in the

state-court quiet-title actions related to Vance Springs, he could not challenge

title to the property in his criminal case. See Hamilton, 70 P.3d at 119. The

district court noted that M r. Hamilton had failed even to argue that grounds

existed to overcome this procedural ground for denial relied upon by the Utah

Court. See Thomas, 218 F.3d at 1221 (“This court may not consider issues raised

in a habeas petition that have been defaulted in state court on an independent and

adequate procedural ground unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” (internal quotation marks and

brackets omitted)). The district court's ruling was correct, and could not be

debated by reasonable jurists.

      The district court did not address M r. Hamilton's claim based on equitable

estoppel, but we can readily determine that he is not entitled to relief on that

ground. The Utah Supreme Court addressed the issue on the merits, and its

analysis is eminently reasonable. See Hamilton, 70 P.3d at 119-20. In any event,

the issue is not one of federal constitutional law, so we cannot grant a COA on

that ground. See 28 U.S.C. § 2253(c)(2); Thornburg v. M ullin, 422 F.3d 1113,

                                          -7-
1128-29 (10th Cir. 2005) (“Federal habeas review . . . is limited to violations of

constitutional rights.” (internal quotation marks omitted)).

       The district court resolved M r. Hamilton’s other claims on the merits. It

ruled that (1) the challenged jury instruction was correct; (2) the Utah Supreme

Court did not incorrectly apply federal law in determining that the verdicts were

supported by sufficient evidence; and (3) his counsel provided effective

assistance. The district court's rulings could not be debated by reasonable jurists.

IV .   C ON CLU SIO N

       W e DENY M r. Hamilton’s application for a COA and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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