                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 March 28, 2012
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court


 ROBERT ROY BAKER,

                 Petitioner–Appellant,                    No. 11-4193
          v.                                    (D.C. No. 2:08-CV-00510-TC)
 STEVEN TURLEY; UTAH STATE                                  (D. Utah)
 PRISON,

                 Respondents–Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY, and HOLMES, Circuit Judges.



      Petitioner, a pro se state prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. Petitioner pled

guilty to two counts of child rape, one count of aggravated sexual abuse of a

child, and one count of sexual exploitation of a minor. Following a remand, he

was sentenced to two concurrent sentences of ten years to life on the rape counts,

a concurrent sentence of five years to life on the sexual abuse count, and a

consecutive sentence of one to fifteen years on the sexual exploitation count. On


      *
        This order is not binding precedent except under the doctrines of law of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.
appeal, the Utah Court of Appeals rejected his claim of ineffective assistance of

counsel at sentencing. See State v. Baker, 2007 WL 416682 (Utah Ct. App.

2007). The Utah Supreme Court denied his petitions for certiorari review. In this

§ 2254 habeas petition, Petitioner again claims ineffective assistance of counsel at

sentencing relating to two issues: (1) Petitioner’s counsel should have insisted

the district court obtain a psychosexual evaluation of Petitioner to use as

mitigating evidence at sentencing; and (2) Petitioner’s counsel should have

challenged the prosecutor’s statements at sentencing that purportedly exaggerated

the amount of child pornography found in Petitioner’s home.

      The district court denied Petitioner’s habeas petition and held that

Petitioner failed to show his attorney’s conduct fell below the objective standard

of reasonableness required by Strickland v. Washington, 466 U.S. 668 (1984).

The district court did not address whether Petitioner is entitled to a certificate of

appealability. Thus, Petitioner must obtain a COA from this court to appeal the

denial of his habeas petition. See 28 U.S.C. § 2253(c)(1). In denying Petitioner’s

habeas petition, the district court concluded the Utah Court of Appeals did not

unreasonably apply the law, nor did Petitioner provide clear and convincing

evidence that the state court’s factual decisions were clearly erroneous. We agree

with the district court and have nothing to add to that court’s thorough analysis.

      After filing the current appeal, Petitioner filed a motion in the district court

seeking release of his sealed pre-sentence report. He argued he needed a copy of

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the report to assist in the preparation of his appeal. The district court did not rule

on his motion, and Petitioner subsequently filed a petition for writ of mandamus

asking this court to compel the district court to release the requested report. “The

Supreme Court has made it clear that mandamus is a ‘drastic’ remedy that is ‘to

be invoked only in extraordinary situations.’” In re Antrobus, 519 F.3d 1123,

1124 (10th Cir. 2008) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33,

34 (1980)). “Only exceptional circumstances, amounting to a judicial usurpation

of power, will justify the invocation of this extraordinary remedy.” Allied Chem.,

449 U.S. at 35. Petitioner has not satisfied the exceptional standard necessary for

mandamus. Further, based on our review of the case we conclude any lack of

access to the report did not prejudice his appeal.

      After carefully reviewing Petitioner’s brief and the record on appeal, we

conclude reasonable jurists would not debate whether the district court erred in

dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We

therefore DENY the application for a certificate of appealability and DISMISS

the appeal. We GRANT Petitioner’s motion to proceed in forma pauperis on

appeal.

                                               ENTERED FOR THE COURT



                                               Monroe G. McKay

                                               Circuit Judge

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