                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 30 2002
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 RUSSELL LEE BUTLER, JR.,

             Petitioner-Appellant,
                                                        No. 02-3211
 v.                                                     (D. Kansas)
                                              (D.C. No. 01-CV-3458-DES)
 STATE OF KANSAS; CARLA
 STOVALL, Attorney General, State of
 Kansas,

             Respondents-Appellees.


                          ORDER AND JUDGMENT            *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.




      After examining the 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 submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
      Russell Lee Butler, Jr., a Kansas prisoner proceeding   pro se , requests a

certificate of appealability (“COA”) to appeal the federal district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition. A COA will be issued only when

there is “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Mr. Butler can achieve this by “   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. McDaniel, 529 U.S. 473,

483-84 (2000) (internal quotation marks omitted).

      After carefully reviewing the record in Mr. Butler’s case, we conclude that

he has not met these standards. Mr. Butler is procedurally barred from raising

this claim, and we find no cause or prejudice that would require us to proceed to

the merits of his claim. Furthermore, failure to consider Mr. Butler’s claim will

not result in a fundamental miscarriage of justice. Therefore, we decline to issue

a certificate of appealability, and we dismiss the appeal.



                                 I. BACKGROUND

      Mr. Butler entered a plea of   nolo contendere to two counts of attempted

aggravated indecent liberties with a child, Kan. Stat. Ann. §§ 21-3301 and 21-

3504(a)(1) (2001), based on at least two instances of sexual intercourse with the


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15-year-old daughter of the woman with whom Mr. Butler was then living. At the

plea and sentencing hearings, Mr. Butler was represented by counsel. The

appropriate procedures for a plea of   nolo contendere required the state district

court judge to determine whether the state had proffered a factual basis for the

crimes. Finding the state’s proffered factual basis to be sufficient, the court

found Mr. Butler guilty. At a subsequent hearing, Mr. Butler was sentenced to

two consecutive thirty-two month terms of imprisonment.

      Six months after sentencing, Mr. Butler filed post-conviction motions       pro

se in Kansas district court , requesting that his plea be withdrawn, pursuant to

Kan. Stat. Ann. § 22-3210(d), asserting ineffectiv e assistance of counsel and

asking for an evidentiary hearing based on proffered newly discovered evidence,

pursuant to Kan. Stat. Ann. § 60-1507. The state district court denied the

motions. In the Kansas Court of Appeals, Mr. Butler argued that the state district

court should have appointed counsel and that it should have granted him a hearing

based on his claim of newly available evidence. Significantly, Mr. Butler did        not

raise the ineffective assistance of plea counsel claim in that state-level appeal.

The Kansas Court of Appeals denied Mr. Butler’s appeal, and the Kansas

Supreme Court denied Mr. Butler’s petition for review. Mr. Butler was

represented by counsel (other than plea counsel) on both his appeal to the Kansas

Court of Appeals and his petition for review by the Kansas Supreme Court.


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       In his federal habeas petition, Mr. Butler claims ineffective assistance of

plea counsel for failing to investigate facts surrounding the crime and for failing

to advise Mr. Butler of the consequences of his plea. The magistrate judge

recommended that the petition be denied, finding procedural default in the state

court, absent cause or prejudice (citing   Coleman v. Thompson , 501 U.S. 722, 750

(1991)). The district court adopted the magistrate judge’s recommendation,

denied the petition, and did not grant Mr. Butler a COA.



                                    II. DISCUSSION

       Before filing a federal habeas corpus petition, an inmate must exhaust the

available state remedies. See 28 U.S.C. § 2254(b)(1). “A state prisoner is

ordinarily not able to obtain federal habeas corpus relief unless it appears that the

applicant has exhausted the remedies available in the courts of the State . . . .”

Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)

(quotation marks omitted). To satisfy this exhaustion requirement, a petitioner

must first present the issues raised in the federal habeas action to the highest

Kansas court, either by direct appeal or by the post-conviction process. Mr.

Butler does not dispute that he did not pursue the ineffective assistance of plea

counsel claim through the Kansas Supreme Court. Mr. Butler has thus failed to

exhaust his only claim.


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      Moreover, it is no longer possible for Mr. Butler to return to the Kansas

courts to exhaust his claim. The Kansas district court denied Mr. Butler’s

ineffective assistance claim on January 12, 2000, more than nineteen months

before Mr. Butler filed his § 2254 motion with the federal district court, whereas

Kansas law requires appeals within 130 days of adverse rulings. See State v.

Ortiz 640 P.2d 1255, 1257 (Kan. 1982) (“The appeal in this case was not taken

within the 130-day period fixed by statute, K.S.A. 22-3608 and K.S.A. 1979

Supp. 21-4603, and must therefore be dismissed.”)

      In addition, Mr. Butler is generally not entitled to file a successive petition

for post-conviction relief. See Kan. Stat. Ann. § 60-1507(c) (“The sentencing

court shall not be required to entertain a second or successive motion for similar

relief on behalf of the same prisoner.”) Kansas courts have recognized that

“exceptional circumstances” might justify a successive motion. See Brooks v.

State, 966 P.2d 686, 688 (Kan. Ct. App. 1998). However, Kansas defines

exceptional circumstances quite narrowly. See id. (“Exceptional circumstances . .

. are those unusual events or intervening changes in the law which prevented the

movant from being aware of and raising all of his alleged trial errors in his first

post-conviction proceeding, and they must be such that the ends of justice can

only be served by reaching the merits of the subsequent application.”). As Mr.




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Butler does not allege any such exceptional circumstances, he cannot now exhaust

this claim via a successive motion under Kan. Stat. Ann. § 60-1507.

       Mr. Butler’s claim is therefore subject to anticipatory procedural default.

“If the court to which petitioner must present his claims in order to meet the

exhaustion requirement would now find those claims procedurally barred, there is

a procedural default for the purpose of federal habeas review.” Dulin v. Cook,

957 F.2d 758, 759 (10th Cir. 1992).

       With his claim not properly exhausted in the Kansas state courts, Mr. Butler

must show either: 1) cause and prejudice or 2) manifest injustice. See Coleman,

501 U.S. at 750. He is unable to do so. “‘[C]ause’ under the cause and prejudice

test must be something external to the petitioner, something that cannot fairly be

attributed to him. . . . For example, a showing that the factual or legal basis for a

claim was not reasonably available to counsel . . . would constitute cause under

this standard.”   Id. at 753 (internal quotation marks omitted) (emphasis in

original).

       Mr. Butler claims that his failure to exhaust state-level remedies was

caused by his appellate attorney’s failure to inform Mr. Butler that he must raise

the ineffective assistance of counsel issues in the Kansas state courts in order to

preserve those issues for federal habeas review. This is a troubling allegation,




                                          -6-
because it raises the possibility that an attorney appointed by the state was the

cause of Mr. Butler’s procedural default.

       However, even if we were to credit Mr. Butler’s attorney’s alleged failures

as an “objective factor external to the defense,”   Coleman , 501 U.S. at 752, which

impeded Mr. Butler’s efforts to comply with the procedural rule, he is unable to

show actual prejudice. To show actual prejudice, “[t]he habeas petitioner must

show not merely that the errors . . . created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage. . . .”   Murray v. Carrier , 477

U.S. 478, 494 (1986) (emphasis in original) (internal quotations omitted).

       Mr. Butler claims that there is “newly discovered evidence” that he was not

in the state of Kansas on the dates that he was alleged to have committed the

crimes, evidence which he claims to have requested his attorney to retrieve prior

to entering his plea. However, the issue of the exact dates of the sexual

encounters was discussed and resolved at the plea hearing:

              Mr. Warren [counsel for Mr. Butler]: [I]n discussing the
              matter with my client, he wasn’t initially sure that the
              dates that were given were exactly correct, but he said
              that it may very well have happened on those dates. And
              he was very cooperative with the police and gave a full
              statement to the police regarding his involvement, so
              there’s no question that he was involved. Again, the
              initial question we had was as to the dates but we don’t
              have any evidence that those were not the dates.

              The Court : And he wouldn’t contest that at least on two
              separate occasions this occurred?

                                      -7-
             Mr. Warren : Right.

Rec. vol. II, at 15 (Plea Hr’g, dated Feb. 12, 1999).

      Mr. Butler, therefore, cannot prove prejudice. Nor can Mr. Butler

“demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice,” Coleman, 501 U.S. at 750, where the “ends of justice”

require “a colorable showing of factual innocence.” Kuhlmann v. Wilson, 477

U.S. 436, 454 (1986). Given his failure to contest the facts of his having actually

engaged in sexual intercourse with a fifteen-year-old girl, Mr. Butler cannot

satisfy this standard.



                                III. CONCLUSION

      For the reasons set forth above, we DENY Mr. Butler’s request for a COA

and DISMISS this appeal.



                                                Entered for the Court


                                                Robert H. Henry
                                                Circuit Judge




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