                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 6 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

DANIEL DAVID COLE,

              Petitioner - Appellant,

v.                                                        No. 02-2195
                                                  D.C. No. CIV-01-980 LH/LCS
STATE OF NEW MEXICO;                                    (D. New Mexico)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; ERASMO
BRAVO, Warden, Guadalupe County
Correctional Facility,

             Respondents - Appellees.


                                ORDER AND JUDGMENT        *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.



       After examining the briefs 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)(C). The case is

therefore submitted without oral argument.


       *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
      Daniel David Cole seeks to appeal the district court’s order denying his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons

stated below, we DENY Mr. Cole’s motion for a certificate of appealability and

DISMISS this appeal.



                                I. BACKGROUND

      Following a bench trial, the District Court of Otero County, New Mexico,

found Mr. Cole guilty but mentally ill of one count of first-degree murder, in

violation of N.M. Stat. Ann. § 30-2-1(A)(1), and three counts of attempted first-

degree murder, in violation of N.M. Stat. Ann. §§ 30-28-1(A) and 30-2-1(A)(1).         1



Mr. Cole received a sentence of life imprisonment on the murder conviction and

nine years’ imprisonment for each of the attempted murders. The state court ruled

that the sentences for the attempted murders would be served concurrently with

each other and consecutive to the life sentence on the first-degree murder

conviction. Mr. Cole appealed his convictions to the New Mexico Supreme Court.

That court affirmed Mr. Cole’s convictions.         See Rec. doc. 13, ex. G (Supreme

Court of New Mexico’s Decision, case no. 25,643, filed Aug. 8, 2000).




       1
        The murder victim was Mr. Cole’s wife and the intended victims of the
attempted murders were his three minor children.

                                              -2-
       On August 28, 2001, Mr. Cole filed the instant habeas petition in the federal

district court, asserting fifteen grounds for relief.   2
                                                            Subsequently, on September

10, 2001, Mr. Cole filed a pro se petition for a writ of habeas corpus in New

Mexico state district court asserting the same claims for relief.       See Rec. doc. 13,

ex. I (Petition for Writ of Habeas Corpus, filed Sept. 10, 2001). On November 8,

2001, the Otero County District Court issued an order summarily dismissing Mr.

Cole’s state habeas petition.

       The parties agree that Mr. Cole did not file a petition for a writ of certiorari

with the New Mexico Supreme Court within thirty days of the filing of this



        2
         In particular, Mr. Cole alleged that (1) the trial court erred in allowing a
psychologist to testify about Mr. Cole’s prior bad acts, based on information
obtained during a sanity evaluation; (2) the trial court erred in admitting
statements not preceded by a Miranda warning; (3) the court did not apply the
correct elements of first-degree murder; (4) the court erred in admitting improper
character evidence; (5) the court erred in admitted hearsay testimony; (6) the
court erred in not allowing him to present mitigating evidence; (7) the sentence
imposed violated double jeopardy principles; (8) the court erred in disallowing
certain defenses; (9) the court violated his right to be free from self-incrimination
by admitting a psychological evaluation; (10) the court erred in declining to
reduce the charge to second-degree murder based upon his psychological state;
(11) the court erred in allowing the prosecution to pursue the first-degree murder
charge when he had asserted the insanity defense; (12) the court erred in refusing
to reduce the murder charge to voluntary manslaughter based upon provocation;
(13) the court erred in refusing to consider his contention that he acted in self-
defense; (14) the court erred in declining to find him guilty of manslaughter
rather than first-degree murder; (15) he received ineffective assistance of counsel
because his trial lawyer failed to investigate the case and prepare an adequate
defense. See Rec. vol. I, doc. 1 (Petition for a Writ of Habeas Corpus, filed
August 28, 2001).

                                                -3-
summary dismissal, as required by Rule 12-201(A) of the New Mexico Rules of

Appellate Procedure. However, according to Mr. Cole, he submitted a certiorari

petition prematurely—on August 28, 2001 (prior to the district court’s ruling of

summary dismissal). According to Mr. Cole, after this premature filing, he

received a letter from the New Mexico Supreme Court informing him that he was

required to file an endorsed copy of the state district court’s order denying habeas

relief. 3 Subsequently, Mr. Cole asserts, he prepared a letter to the New Mexico

Supreme Court clerk’s office and attached a copy of the dismissal order.

However, Mr. Cole reports, he was unable to obtain notarization of his signature

until December 11, 2001, because his caseworker was unavailable. On that date,

he mailed the letter to the clerk’s office. The clerk’s office received the letter on

December 13, 2001. However, the clerk’s office informed Mr. Cole that it could

not file his certiorari petition because the deadline had passed.   See Rec. doc. 20,

at 6-7 (Mr. Cole’s objections to the magistrate’s report, filed May 3, 2002).



        3
         This August 28, 2001 certiorari petition is not in the record before us. It
appears that Mr. Cole and his counsel may be confused about that date: August
28, 2001 is the date that Mr. Cole filed his petition for a writ of habeas corpus in
the federal district court. Because Mr. Cole did not file his state habeas petition
in the Otero County court until September 10, 2001, it is unclear why he would
have filed a certiorari petition in the New Mexico Supreme Court prior to that
date. In any event, given Mr. Cole’s acknowledged failure to file a timely
certiorari petition after the Otero County court’s ruling of November 8, 2001, we
need not determine whether Mr. Cole actually filed a certiorari petition in the
New Mexico Supreme Court on August 28, 2001.

                                              -4-
       In the federal district court case, the magistrate judge issued proposed

findings and a recommended disposition on April 23, 2002.       See Rec. vol. I, doc.

19. The magistrate judge concluded that Mr. Cole’s petition was procedurally

barred because he had not timely filed a certiorari petition in the New Mexico

Supreme Court. The magistrate judge also considered the merits of Mr. Cole’s

ineffective assistance of counsel claim, concluding that Mr. Cole had failed to

demonstrate that he was prejudiced by his counsel’s alleged errors. The district

court adopted the magistrate’s report and recommendation and dismissed Mr.

Cole’s petition.



                                    II. DISCUSSION

         Mr. Cole seeks a certificate of appealability (COA) in order to pursue

this appeal. Because the district court ruled on procedural grounds, Mr. Cole may

obtain a COA if he “shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

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

in its procedural ruling.”   Slack v. McDaniel , 529 U.S. 473, 484 (2000).

       In this appeal, Mr. Cole first contends that the district court erred in

dismissing his petition without first reviewing a complete record of the state court

proceedings, including a transcript of the trial. Mr. Cole also advances


                                           -5-
substantive challenges to the district court’s conclusion that his claims are

procedurally barred: He maintains that he has made a sufficient showing of cause

and prejudice excusing his procedural default and that a failure to consider his

claims would result in a fundamental miscarriage of justice.



                         A. Alleged Inadequacy of the Record

      Mr. Cole observes that “neither the transcript of [the state court]

proceedings nor the record proper from state court have been filed in this case.”

Aplt’s Br. at 3. He contends that “[w]ithout a state court record proper and

transcript of proceedings, appointed counsel is unable to begin to assemble the

needed proof of an ineffective assistance of counsel claim.”    Id. at 11. Mr. Cole

further maintains that the district court’s analysis of his procedural default is

deficient because it is based on an incomplete record.

      We are not persuaded by Mr. Cole’s contentions about the inadequacy of the

record. In response to Mr. Cole’s petition, the respondent filed a motion to

dismiss and a supporting memorandum in which he argued that Mr. Cole’s claims

were procedurally barred.    See Rec. vol. I doc. 11-12 (Motion to Dismiss and

Memorandum in Support, filed December 20, 2001). The respondent noted that

Mr. Cole had failed to file a timely certiorari petition in the New Mexico Supreme

Court. Rec. vol. I, doc. 12, at 4-5. Additionally, the respondent stated that “[t]he


                                            -6-
New Mexico Supreme Court’s Decision [in Mr. Cole’s direct appeal] pointed to

specific evidence in the record from which a factfinder could have found [Mr.

Cole] guilty of first degree murder and three counts of attempted first degree

murder.” Rec. vol. I. doc. 12 at 6. The respondent also submitted copies of the

judgment and sentence, the briefs in the state court direct appeal, the New Mexico

Supreme Court’s decision, Mr. Cole’s state court habeas petition, and the state

district court’s summary dismissal.    See Rec. vol. I, doc. 13. (Answer to Petition

for a Writ of Habeas Corpus, filed Dec. 20, 2001). These documents provided the

district court with sufficient information to determine whether Mr. Cole’s petition

was procedurally barred and whether either of the established exceptions (cause

and prejudice or a fundamental miscarriage of justice) would excuse his default.   4




                                B. Cause and Prejudice

      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


       4
         In that regard, we note that Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts enables a district court to order a
summary dismissal of a petition “[i]f it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in
the district court.” That provision indicates that it may be proper for a district
court to rule on issues of procedural bar without reviewing the entire trial
transcript.

                                            -7-
applicant has exhausted the remedies available in the courts of the State.” Dever

v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (quotation marks

omitted).

         If state remedies are still available, the appropriate disposition is to dismiss

a federal habeas petition without prejudice so that the petitioner may pursue those

remedies. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). However, where

state remedies are no longer available, a dismissal for failure to exhaust is not

appropriate. Instead, we must deny the petition unless the petitioner can show

cause for the default and actual prejudice resulting from the alleged federal law

violation, or that a fundamental miscarriage of justice will occur if the claims are

not considered. See id. at 750; Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir.

1995).

         As noted above, Mr. Cole failed to file a certiorari petition in the New

Mexico Supreme Court within thirty days of the denial of his state habeas petition,

as required by Rule 12-201(A) of the New Mexico Rules of Appellate Procedure.

Accordingly, we may not reach the merits of Mr. Cole’s federal habeas petition

unless he can establish cause for his procedural default and resulting prejudice or




                                             -8-
that a fundamental miscarriage of justice would result if we do not hear the merits

of his claim. See Coleman, 501 U.S. at 750. 5

       As to cause and prejudice, Mr. Cole asserts that the unavailability of his

caseworker constitutes cause for his failure to file a timely certiorari petition in the

New Mexico Supreme Court. Mr. Cole did not raise this argument until he filed

objections to the magistrate’s report and recommendation. As a result, the district

court did not consider this contention. See Rec. vol. I, doc. 21 (District Court

Order Adopting Magistrate Judge’s Proposed Findings and Recommended

Disposition, filed June 26, 2002) (stating that Mr. Cole raised a new claim in his

objections and deeming that claim waived).

       We conclude that, by failing to raise the issue in his initial response to the

respondent’s motion to dismiss, Mr. Cole has waived the argument that the

unavailability of his caseworker constituted cause for his failure to file a certiorari

petition. “[A]llowing parties to litigate fully their case before the magistrate and,

if unsuccessful, to change their strategy and present a different theory to the

district court would frustrate the purpose of the Magistrates Act.”        Greenhow v.

Sec’y of Health & Human Servs.      , 863 F.2d 633, 638 (9th Cir. 1988),    overruled on



        5
         We note that Mr. Cole does not contend here that the premature filing of
his certiorari petition somehow rendered his subsequent petition timely. Instead,
he concedes that there was a default and argues that the cause and prejudice
exception excuses it. Aplt’s Br. at 4.

                                             -9-
other grounds by , United States v. Hardesty , 977 F.2d 1347, 1348 (9th Cir. 1992).

In explaining the delay, Mr. Cole’s attorney states that he did not mention the

contention about the unavailability of the caseworker in his initial response

because “counsel first learned of this fact April 29, 2002” [after the filing of the

magistrate’s proposed findings and recommendation on April 23, 2002]. Aplt’s

Br. at 7 n.6. This cursory explanation does not establish the kind of exceptional

circumstances necessary to excuse the failure to raise the issue before the

magistrate judge. See Greenhow , 863 F.2d at 638-39 (finding no exceptional

circumstances).

      Moreover, even if Mr. Cole had timely raised the argument as to the

unavailability of his caseworker, we conclude that his assertions fail to establish

cause for his procedural default. The mere assertion that a particular caseworker

was not available does not demonstrate that there were no other means available to

Mr. Cole to file a timely certiorari petition. In the absence of sufficient cause for

Mr. Cole’s default, we need not address his assertions of prejudice.



                       C. Fundamental Miscarriage of Justice

      Mr. Cole also contends that a fundamental miscarriage of justice would

result if the merits of his claim are not addressed. He contends that the evidence

is insufficient to establish his guilt as to the first-degree murder charge, because


                                          -10-
his homicidal intent at the moment of his attempt to asphyxiate his wife did not

continue to his subsequent, allegedly spontaneous decision to stab her. See Aplt’s

Br at 23.

      We conclude that Mr. Cole has failed to establish a fundamental miscarriage

of justice warranting an exception to procedural bar. The fundamental miscarriage

of justice exception applies only in extraordinary instances in which a

constitutional violation probably caused the conviction of an innocent person. See

Murray v. Carrier, 477 U.S. 478, 479-80 (1986). In order to establish a

fundamental miscarriage of justice, Mr. Cole must support his allegations of

innocence with “new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was

not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, Mr. Cole

points to no such evidence. Moreover, the New Mexico Supreme Court’s decision

affirming Mr. Cole’s conviction sets forth substantial evidence supporting his

convictions. 6


       6
         The Supreme Court rejected Mr. Cole’s argument that because he
abandoned an attempt to asphyxiate his wife, his subsequent stabbing of her did
not establish an intent to kill. The court stated
       By engaging in successive attempts on Ms. Cole’s life, Mr. Cole
       evinced that his original deliberate intent to kill her survived his
       failed attempt to asphyxiate her . . . . [W]ithout evidence of
       abandonment or any other interruption of his intent [Mr. Cole’s]
       attempts to asphyxiate, strangle, and set Ms. Cole’s clothes on fire
                                                                         (continued...)

                                         -11-
                               III. CONCLUSION

      Accordingly, we DENY Mr. Cole’s application for a certificate of

appealability and DISMISS this appeal.



                                      Entered for the Court


                                      Robert H. Henry
                                      Circuit Judge




      (...continued)
      6

      clearly provided sufficient evidence to lead [the trial judge] to find,
      beyond a reasonable doubt that [Mr. Cole] stabbed Ms. Cole with the
      deliberate intent to kill her.
Rec. vol. I, doc. 13, ex. G, at 4.

                                         -12-
