                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      March 14, 2007
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                  TENTH CIRCUIT                         Clerk of Court



 ALBERT DENNIS ZAM PEDRI,

       Petitioner - A ppellant,
                                                        No. 06-4223
 v.                                              (D.C. No. 2:05-CV-139-TC)
                                                          (D. Utah)
 STA TE OF U TA H ,

       Respondent - Appellee.



                      OR DER DENYING A CERTIFICATE
                            OF APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Albert Zampedri, a state prisoner proceeding pro se, requests a certificate

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

2254 habeas petition. For substantially the same reasons set forth by the district

court, we D EN Y a COA and DISM ISS.

      In August 2002, Zampedri was convicted in Utah state court of aggravated

attempted murder and attempted murder. He unsuccessfully appealed his

conviction to the Utah Court of Appeals. Before that court, he argued: (1) The

trial court erred in instructing the jury that the defendant must have acted

“know ingly”; (2) Counsel was ineffective in failing to challenge those
instructions; (3) Counsel was ineffective in failing to move for a directed verdict

because the evidence was insufficient to support the necessary mens rea; and (4)

The trial court erred in failing to enter a directed verdict on its own motion.

Zampedri then sought a w rit of certiorari from the Utah Supreme Court,

advancing three claims: (1) Counsel was ineffective for reasons not related to the

jury instructions or directed verdict issues; (2) The trial court erred in denying his

request to terminate counsel; and (3) A drug-addicted police officer handled

critical evidence in violation of state law. The State opposed granting the petition

on the grounds that Zampedri did not raise these issues before the Court of

Appeals. The Utah Supreme Court denied his petition in a summary order on

January 20, 2005.

      Zampedri then filed a petition for habeas relief in federal district court,

arguing: (1) Counsel was ineffective in failing to object (he did not specifically

identify what objections counsel should have made); (2) The trial court erred in

failing to provide him with new counsel; (3) A police officer handling crucial

evidence was using drugs both before his arrest and during the trial in violation of

state law; (4) Other government witnesses engaged in witness tampering; and (5)

The prosecution engaged in witness tam pering. The district court denied his

petition, finding that these claims were procedurally defaulted because Zampedri

failed to raise them before the Utah Court of Appeals. See Thomas v. Gibson,

218 F.3d 1213, 1221 (10th Cir. 2000) (“This court may not consider issues raised

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in a habeas petition that have been defaulted in state court on an independent and

adequate procedural ground unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.”). Further, the district court

ruled that Zampedri did not show sufficient cause and prejudice or a fundamental

miscarriage of justice to overcome this bar.

         On appeal, Zampedri raises the following arguments: (1) Counsel was

ineffective in failing to fully investigate the crime scene; (2) Counsel was

ineffective in failing to move for a directed verdict and in failing to object to jury

instructions that improperly identified the requisite mens rea as “knowingly”; (3)

The trial court erred in failing to enter a directed verdict based on insufficiency of

the evidence; (4) The trial court erred in using the word “knowingly” when

instructing the jury on the mens rea element of the offenses; (5) Counsel was

ineffective in failing to inform the trial judge that witness tampering had occurred

(which Zampedri argues indicates that there was a conspiracy to convict him); (6)

He is actually innocent; (7) The officer handling critical evidence was using drugs

in violation of state law; and (8) Police officers perjured themselves during the

trial.

         A state petitioner pursuing federal habeas relief must exhaust state

remedies with respect to all claims presented to a federal court. 28 U.S.C.

§ 2254(b), (c). Zampedri did not present his second, third, and fourth claims to

the Utah Supreme Court, and thus has procedurally defaulted those claims. See

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Dulin v. Cook. 957 F.2d 758, 759 (10th Cir. 1992) (holding that a U tah state

prisoner failed to exhaust state procedural remedies by not presenting claims to

the U tah Supreme Court). As correctly decided by the district court, Zampedri

procedurally defaulted with respect to his first, fifth, seventh, and eighth claims

because he did not raise them before the Utah Court of Appeals on direct appeal.

See Thomas, 218 F.3d at 1221; DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995)

(“Issues not raised in the court of appeals may not be raised on certiorari unless

the issue arose for the first time out of the court of appeals’ decision.”). H is

actual innocence claim fails because Zampedri has not presented evidence that

makes it “more likely than not that no reasonable juror” would have convicted

him – he has only made conclusory allegations about his innocence in his brief to

this court. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (holding that in order

for a petitioner to succeed on an actual innocence claim, he or she must

demonstrate that it is more likely than not that no reasonable juror could convict

petitioner in light of the new evidence).

      Accordingly, we D EN Y a COA and DISM ISS Zampedri’s appeal. W e

G R A N T Zampedri’s motion to proceed in forma pauperis.


                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge

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