                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 14 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 PAUL SANWICK,

          Petitioner-Appellant,

 v.                                                        No. 99-4075
                                                             (D. Utah)
 SCOTT CARVER, Warden, Utah State                      (D.Ct. No. 94-518-B)
 Prison,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Paul Sanwick appeals the district court’s decision dismissing his

habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, as procedurally barred.

We deny Mr. Sanwick a certificate of probable cause 1 and dismiss his appeal.



      The State of Utah charged Mr. Sanwick with ten counts of rape and sexual

abuse of his two minor daughters. Mr. Sanwick entered a plea of guilty to one

count of first degree felony rape in exchange for dismissal of the remaining

counts. See State v. Sanwick, 713 P.2d 707, 708 (Utah 1986). The state trial

court sentenced him to five years to life. Id. Mr. Sanwick filed a direct appeal

claiming the trial court improperly relied on hearsay statements and precluded

him from confronting his two daughters at sentencing. Id. The Utah Supreme

Court affirmed his sentence. Id. at 709.



      Mr. Sanwick next filed a “Motion for Court to Refuse Unlawful Plea” with

the trial court, renewing his argument that the court improperly relied on


      1
          Mr. Sanwick, who originally filed his petition May 20, 1994, and prior to
enactment of the Anti-Terrorism Effective Death Penalty Act of 1996, did not request a
certificate of probable cause, and the district court made no ruling thereon. Under our
Emergency General Order of October 1, 1996, we deem the district court’s failure to issue
a certificate of probable cause within thirty days after filing the notice of appeal as a
denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir.
1997), overruled on other grounds, United States v. Kunzman, 125 F.3d 1363 (10th Cir.
1997). Accordingly, we construe the appeal as Mr. Sanwick’s request to this Court for a
certificate of probable cause. Id.

                                           -2-
inaccurate information, and precluded him from confronting his daughters at

sentencing. He also alleged his guilty plea was coerced, involuntary and

uninformed, and his conviction should have been for second, rather than first,

degree rape. The trial court denied the motion, holding Mr. Sanwick either raised

these claims, or should have raised them, on direct appeal. The Utah Supreme

Court summarily affirmed the trial court ruling, stating simply “[t]he court ...

affirms the trial court judgment on its own motion, inasmuch as it plainly appears

that no substantial question is presented” (citing Utah Rule of Appellate

Procedure 10(e)). 2



      Thereafter, Mr. Sanwick filed an amended § 2254 petition, renewing

essentially the same claims raised in the state courts. 3 As to his first degree rape

conviction, he claimed: (1) the state court lacked jurisdiction because the state

repealed the first degree rape statute under which he received his conviction; (2)

      2
          Utah Rule of Appellate Procedure 10(e) states:

      The court, upon its own motion, and on such notice as it directs, may
      dismiss an appeal or petition for review if the court lacks jurisdiction; or
      may summarily affirm the judgment or order which is the subject of review,
      if it plainly appears that no substantial question is presented; or may
      summarily reverse in cases of manifest error.

      3
        Mr. Sanwick admitted as much in his petition: “All issues presented herein were
presented in first [state] appeal and/or Motion for Court to Refuse Unlawful Plea.”


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he was indicted and pled guilty to second degree felony rape – not first degree

felony rape; and (3) the court applied the first degree felony rape statute ex post

facto and unconstitutionally because the state only charged him with second

degree felony rape. Likewise, he reiterated his argument the court

unconstitutionally sentenced him based on inaccurate testimony and without

allowing him to examine his daughters at sentencing. He also renewed his

argument stating his guilty plea was unknowing, involuntary and induced while

under the influence of psychotropic drugs. Lastly, Mr. Sanwick requested an

evidentiary hearing on his petition.



      The district court referred Mr. Sanwick’s petition to a federal magistrate

judge who recommended dismissing the petition. The magistrate judge noted the

state court determined his claims were procedurally barred as either previously

litigated on direct appeal or because they should have been raised on direct

appeal. The magistrate judge further found Mr. Sanwick failed to show “cause

and prejudice” for his procedural default, or a miscarriage of justice enabling the

court to review his petition. Finally, the magistrate judge recommended denying

Mr. Sanwick’s request for an evidentiary hearing, stating he failed to proffer

specific facts supporting a finding the requisite exceptions of “cause and

prejudice” or miscarriage of justice existed. The district court adopted the


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magistrate judge’s report and recommendation, granted the government’s motion

to dismiss, and denied the petition.



      Mr. Sanwick now appeals the district court’s decision. Because Mr.

Sanwick filed his habeas petition before enactment of the Anti-Terrorism

Effective Death Penalty Act, we apply pre-amendment standards of review.

Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378

(1998). We review the legal basis for the district court’s dismissal of Mr.

Sanwick’s petition de novo. Id. In so doing, we afford deference to the state

court’s construction of state law. Id.



      Mr. Sanwick begins his appeal by asserting the district court erred in

determining the state trial court dismissed his motion as procedurally barred.

Instead, Mr. Sanwick contends the Utah Supreme Court – the last state court

rendering a judgment in his case – dismissed it on its merits and not on procedural

default. Mr. Sanwick premises this contention on the Utah Supreme Court’s

decision which, citing Rule 10(e), determined he “failed to present a substantial

question for review.” He relies on a Utah Supreme Court case, Hernandez v.

Hayward, 764 P.2d 993, 996 (Utah Ct. App. 1988), which states “[s]ummary

affirmance under Rule 10 is a determination of the appeal on its merits.” Because


                                         -5-
the last state court decided his case on the merits, he contends his claims are not

procedurally.



      The federal magistrate judge addressed this issue, relying on Ylst v.

Nunnemaker, 501 U.S. 797, 803 (1991), and finding that “where, as here, the last

reasoned opinion explicitly imposes a procedural default, this court presumes that

the later summary decision by the Utah Supreme Court did not silently disregard

that procedural bar and consider the claims on the merits.” (Emphasis added.)

Under Ylst, the Utah Supreme Court’s unexplained denial of a habeas petition is

not sufficient to lift an explicit procedural bar invoked by the trial court – the last

reasoned state opinion on his claims. 501 U.S. at 803-04. Therefore, we agree

Mr. Sanwick failed to overcome the presumption of the procedural bar because he

failed to carry his “burden of adducing strong evidence” the Utah Supreme Court

reached the merits of his federal claims. Id. at 806. Accordingly, Mr. Sanwick’s

claims are barred unless he can establish “cause and prejudice” for the default or

show a “miscarriage of justice” will occur if his claims are not considered. Id.;

Coleman v. Thompson, 501 U.S. 722, 750 (1991).



      In order to establish “cause and prejudice,” Mr. Sanwick must show “some

objective factor external to the defense impeded [his] efforts to comply with the


                                           -6-
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples

under this standard include a showing the factual or legal basis for a claim was

not reasonably available to him or some interference by officials made

compliance impracticable. Id. Mr. Sanwick laments he met the “cause and

prejudice” requirement by showing the state arbitrarily transformed his “Motion

for Court to Refuse Unlawful Plea” into a motion to withdraw his plea. He claims

this caused him prejudice by not allowing him to invoke numerous constitutional

rights “entangled” in the plea arrangement. We find Mr. Sanwick’s contention

strained as it merely invokes the semantics of how he titled his motion and does

not focus on how the state’s mere assessment of his motion could in any way

impede his efforts to comply with state procedural requirements.



      Mr. Sanwick also claims he established “cause” because the prosecution

improperly sought conviction for first degree rape instead of second degree rape,

as pled in his guilty plea. He claims this “prosecutorial misconduct,” external to

his defense, impeded his efforts. However, Mr. Sanwick fails to show how any

external force impeded him from raising the alleged error during sentencing. On

appeal, he summarily states he “was never informed as to what specific crime he

was charged with or the elements necessary to establish the crime,” but we find

nothing in the record to help us evaluate whether the state court advised him of


                                         -7-
the charge for which he received his conviction and sentence. When an appellant,

such as Mr. Sanwick, asserts his sentence should be reversed because of a

particular error, and the record does not permit us to evaluate it, we will generally

refuse to consider it. See United States v. Vasquez, 985 F.2d 491, 495 (10th Cir.

1993). In this case, where Mr. Sanwick is collaterally attacking the voluntariness

of his guilty plea, we find his conclusory statement he lacked information on the

crime charged, without more, insufficient to meet his burden of establishing

“cause” for his procedural default.



      As to the “miscarriage of justice” exception for procedural default, Mr.

Sanwick does not make a claim of innocence, nor present a colorable showing of

innocence as required to succeed on a “miscarriage of justice” claim. See

Herrera v. Collins, 506 U.S. 390, 404 (1993). Finally, Mr. Sanwick contends he

is entitled to an evidentiary hearing because the allegations in the petition, if

proved, entitle him to relief. However, it is well-established that where, as here,

state procedural default is at issue, Mr. Sanwick must develop evidence in the

state court showing “cause and prejudice” in order to succeed on a request for an

evidentiary hearing on a § 2254 petition. Keeney v. Tamayo-Reyes, 504 U.S. 1,

11 (1992). Mr. Sanwick fails to show he developed such evidence or that a

fundamental miscarriage of justice would result from a failure to hold a federal


                                          -8-
evidentiary hearing. Id.



      In order to obtain a certificate of probable cause, Mr. Sanwick must make a

substantial showing of a denial of a federal right. Barefoot v. Estelle, 463 U.S.

880, 893 (1983). He fails to do so.



      For these reasons, we deny Mr. Sanwick’s request for a certificate of

probable cause and DISMISS his appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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