                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                          August 17, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 DARREL ALAN HYBERG

           Plaintiff–Appellant,

 v.
                                                             No. 11-1188
 KEVIN MILYARD, Warden, Sterling                        (1:09-CV-02271-CMA)
 Correctional Facility; THE ATTORNEY                          (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

           Respondents–Appellees.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


       Darrell Hyberg, a Colorado prisoner proceeding pro se,1 seeks a Certificate of

Appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254

petition. We deny a COA and dismiss the appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
       Because he proceeds pro se, we construe his pleadings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                              I

       Hyberg was convicted of murder after deliberation and related charges in El Paso

County District Court and sentenced to life in prison without the possibility of parole.

Hyberg, represented by counsel, appealed. During the appeal, his attorney sent him a

letter in which she stated that she heard from the staff at Hyberg’s prison that he had

“been looking up [her] other clients . . . in an effort to have them join [him] in a

complaint against [her].” Hyberg’s conviction was affirmed by the Colorado Court of

Appeals.

       Shortly after he lost his appeal, Hyberg received a letter from his attorney in which

she stated unequivocally that she would file a petition for certiorari with the Colorado

Supreme Court “within the 45 days allowed from the date of the [appellate] opinion.”

She did not do so. After the deadline for seeking certiorari had passed and Hyberg

inquired regarding the status of his petition, his attorney sent him a letter saying she

would not file for certiorari because his claims lacked merit.

       Proceeding pro se, Hyberg filed a “Petition for a Writ of Habeas Corpus” with the

Logan County District Court, arguing that his attorney was ineffective for failing to file

his certiorari petition. The court construed the petition as a Colorado Rule of Appellate

Procedure 35(c) motion for postconviction review and transferred the motion to El Paso

County District Court. Due to an administrative error, that court placed Hyberg’s motion

on the civil docket and denied as moot Hyberg’s “Motion to Stay Proceeding 35(c).”

After several filings by Hyberg, in which he sought to determine the status of his petition

and amend it, the El Paso County Court finally addressed the merits of his ineffectiveness

                                             -2-
claim and rejected it. His appeal, which raised an additional ineffectiveness claim

stemming from appellate counsel’s alleged conflict of interest based on the letter in

which she admonished him for considering a complaint against her, was rejected on the

merits. Hyberg petitioned the Colorado Supreme Court for certiorari, which was denied.

       Hyberg then filed an application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the District of Colorado. In his application,

he raised seven issues. The District Court dismissed five of them as unexhausted.

Rejecting Hyberg’s request for an evidentiary hearing, the court considered two of his

ineffectiveness claims on the merits and denied them.

       On appeal, Hyberg makes four arguments. He contends that the district court

erred by: (1) rejecting his claim that his appellate counsel was ineffective for failing to

file a certiorari petition to the Colorado Supreme Court; (2) rejecting his claim that his

appellate counsel had a conflict of interest; (3) determining that Hyberg did not show

cause and prejudice for his failure to exhaust several claims in state court; and (4) failing

to conduct an evidentiary hearing on his claims.

                                              II

       In order to appeal the denial of his § 2254 petition, Hyberg must first receive a

COA from this court. See 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, a habeas

petitioner must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the [§ 2254] 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, 484 (2000) (quotations omitted). In cases in which the

                                             -3-
district court dismisses a habeas petition on procedural grounds, we may grant a COA

only if “jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and . . . jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

       A habeas petitioner has the additional burden of showing that the state court

adjudication of his claim was either “contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the Supreme Court of the United

States” or based on an “unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254.

                                              III

       The district court was correct to reject Hyberg’s first two arguments on the merits.

Both concern ineffectiveness of appellate counsel, which is governed by Strickland v.

Washington, 466 U.S. 668 (1984). A petitioner must show that (1) “counsel's

performance was deficient” and (2) “the deficient performance prejudiced the defense.”

Id. at 687.

       Hyberg’s attorney failed to follow through on her promise to file a petition for

certiorari on his behalf. But the Sixth and Fourteenth Amendments extend the right to

counsel only during trial and the first appeal of right. Pennsylvania v. Finley, 481 U.S.

551, 555 (1987). Review by the Colorado Supreme Court on a certiorari petition is

discretionary. Colo. App. R. 49(a). The United States Supreme Court has “rejected

suggestions” to “establish a right to counsel on discretionary appeals.” Finley, 481 U.S.

at 555; see also Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (“Since respondent

                                              -4-
had no constitutional right to counsel, he could not be deprived of the effective assistance

of counsel by his retained counsel’s failure to file the application timely.”).

       Hyberg argues that these cases are inapplicable because they were decided before

the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which places a

demanding burden on petitioners—even those proceeding pro se—to exhaust all issues

during the state appeals process by raising them in a petition for certiorari to the state’s

highest court. Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002). Because

exhaustion on direct appeal is so critical to future federal habeas review, Hyberg

contends, we should expand the scope of the right to counsel to include certiorari

petitions to state supreme courts. We are certainly troubled that AEDPA has exacerbated

the impact of having poor representation at the certiorari stage—Hyberg’s attorney’s

inaction foreclosed not only any relief from the Colorado Supreme Court, but also any

habeas remedy in federal court. However, our authority to grant habeas relief is

circumscribed by the requirement that a petitioner show a violation of “clearly

established federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254. The

only pertinent Supreme Court precedent cuts against Hyberg’s position. Finley, 481 U.S.

at 555; Wainwright, 455 U.S. at 587-88. Thus, the district court correctly concluded that

the state courts did not violate clearly established federal law.

       Hyberg’s second contention, that his appellate counsel had a conflict of interest,

also fails. Hyberg’s counsel’s admonition that it was in his best interest to cooperate with

her, rather than filing a complaint against her, is not sufficient to show a conflict of

interest. Although the Colorado Court of Appeals reached this conclusion in a summary

                                              -5-
fashion, we will uphold such a decision so long as it does not contravene clearly

established federal law. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). We

adopt the district court’s reasoning on this issue. Contrary to Hyberg’s protestations,

there is no presumption of prejudice in his case because his counsel did not take on

clients with directly conflicting interests. See Cuyler v. Sullivan, 446 U.S. 335, 350

(1980); Mickens v. Taylor, 535 U.S. 162, 176 (2002). And Hyberg’s claim fails on the

first Strickland element: the letter does not support the conclusion that counsel’s errors

were “so serious that counsel was not functioning as the ‘counsel’ guaranteed by the

Sixth Amendment.” 466 U.S. at 687.

                                            IV

       Hyberg’s next argument concerns the district court’s dismissal of his unexhausted

claims. Federal courts must dismiss a habeas claim that was not exhausted in state

courts. 28 U.S.C. § 2254(b)(1). Not only must a claim be raised in state courts, it must

be properly presented; we will not address claims “that have been defaulted in state court

on an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Cummings v.

Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) (quotation omitted). A petitioner arguing

that his procedural error is excusable based on cause “must demonstrate that he diligently

pursued his federal claims as part of his showing of cause for the delay in filing.” Lopez

v. Trani, 628 F.3d 1228, 1231 (10th Cir. 2010).

       Of Hyberg’s four claims dismissed based on failure to exhaust, three were not

raised at any point prior to the federal proceedings and one was raised only in his appeal

                                            -6-
of the denial of his Rule 35(c) motion. Hyberg does not argue that he exhausted any of

these claims, but argues that he has established “cause and prejudice” for his failure to

exhaust. Specifically, he contends that the Colorado courts issued many “contradictory,

confusing orders.” The El Paso County Court misfiled Hyberg’s Rule 35(c) motion and

issued an erroneous order holding that Hyberg’s motion to “stay” the proceedings was

moot. But in spite of the confusing actions of the Colorado courts, Hyberg submitted

several filings forcefully arguing the claims discussed above. The misfiling of his

petition did not prevent him from diligently arguing his other claims as well. And his

failure to raise all potential claims in his initial or amended Rule 35(c) motion now

prevents him from doing so in the Colorado courts. Colo. R. Crim. P. 35(c)(3)(VII)

(requiring the denial of claims not raised in an initial postconviction motion).

       Hyberg also argues that the Colorado rules confused him by treating his self-styled

habeas petition as a Rule 35(c) motion. But pro se petitioners are imputed with

knowledge of legal procedural rules. Rodriguez v. Maynard, 948 F.2d 684, 687 (10th

Cir. 1991). And Colorado law requires ineffectiveness claims to be treated as Rule 35(c)

motions. Horton v. Suthers, 43 P.3d 611, 615-16 (Colo. 2002). This rule in no way

prevented Hyberg from fully stating all of his claims in his initial postconviction

motion—regardless of whether it was subsequently treated as petition for habeas corpus

or a Rule 35(c) motion.

       Hyberg’s claims are inexcusably unexhausted and, at this point, are procedurally

defaulted under Colorado law. They were properly dismissed by the district court and no

reasonable jurist could contend otherwise.

                                             -7-
                                              V

       Finally, Hyberg argues that he was entitled to an evidentiary hearing in the district

court to determine whether his counsel had a conflict of interest. The decision to conduct

such a hearing is generally within the discretion of the district court. Hammon v. Ward,

466 F.3d 919, 926 (10th Cir. 2006). But, if he “diligently pursued” his claim in state

court, he “is entitled to an evidentiary hearing on the issue of ineffective appellate

counsel “so long as his allegations, if true and not contravened by the existing factual

record, would entitle him to habeas relief.” Id. at 926-27. Assuming without deciding

that Hyberg diligently pursued his claim, he was not entitled to a hearing before the

district court because the facts he alleged do not amount to ineffective assistance of

counsel. As discussed above, his counsel’s knowledge of his putative complaint against

her did not amount to a “conflict of interest,” and Hyberg makes no other allegation that

could plausibly support an ineffectiveness claim.

                                             VI

       We DENY a COA and DISMISS the appeal. We GRANT Hyberg’s motion to

proceed in forma pauperis.

                                                          Entered for the Court



                                                          Carlos F. Lucero
                                                          Circuit Judge




                                             -8-
