                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  July 11, 2008
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT
                                                                     Clerk of Court


 GREGORY E. LINDSEY,

          Petitioner-Appellant,
 v.
                                                       No. 08-1169
 AL ESTEP, Warden; and the Attorney
                                            (D.C. No. 04-CV-01705-LTB-KLM)
 General of the State of Colorado,
                                                        (D. Colo.)
          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      In January 1989, an El Paso County, Colorado jury convicted Gregory E.

Lindsey of burglary, attempted sexual assault and habitual criminality charges

arising from a 1988 break-in and attempted sexual assault. In March 1990, a

second El Paso County jury convicted Mr. Lindsey of additional counts of the

same crimes arising from his sexual assault of a second victim, also in 1988.

After his convictions, Mr. Lindsey was sentenced to two life terms of

incarceration, a result the Colorado Court of Appeals and Colorado Supreme



      *
         This order is not binding precedent except under the doctrines of law of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.
Court affirmed in due course. See People v. Lindsey, 868 P.2d 1085 (Colo. Ct.

App. 1993), aff’d, 892 P.2d 281 (Colo. 1995); People v. Lindsey, No. 89CA0340

(Colo. Ct. App. Sept. 27, 1990). Mr. Lindsey thereafter unsuccessfully sought

post-conviction relief in two distinct Colorado state post-conviction motions. See

People v. Lindsey, No. 02CA0541 (Colo. Ct. App. Aug. 28, 2003); People v.

Lindsey, No. 93CA1545, slip op. at 5 (Colo. Ct. App. July 27, 1995).

      On August 17, 2004, Mr. Lindsey filed in the United States District Court

for the District of Colorado, a pro se habeas petition under 28 U.S.C. § 2254.

The magistrate judge assigned the case issued a 30-page report and

recommendation applying the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), which allows a federal court to grant habeas relief only if the

challenged state court decision on the merits was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The magistrate

judge concluded that Mr. Lindsey was not entitled to relief under AEDPA’s

standards. The district court adopted the magistrate judge’s recommendation,

dismissed the petition, and denied Mr. Lindsey’s application for a certificate of

appealability (“COA”).

      Mr. Lindsey now renews before us his request for a COA. Under AEDPA’s

terms, we may issue a COA only if Mr. Lindsey makes a “substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable

                                        -2-
jurists would find the district court’s assessment of the constitutional claims

debatable or wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation

and quotation omitted). Because Mr. Lindsey is proceeding pro se, we must and

do construe his application liberally. Andrews v. Heaton, 483 F.3d 1070, 1076

(10th Cir. 2007). Before us, Mr. Lindsey offers four arguments in support of his

request for a COA. Based on our review of the record, including Mr. Lindsey’s

brief, we conclude that he has not met the threshold set by Congress for the

issuance of the certificate he seeks.

      1. Mr. Lindsey argues that his counsel failed to object to the admission of

DNA evidence in his first trial because the costs associated with mounting a

convincing objection were too high given the budgetary constraints of the public

defender’s office. Counsel’s failure to object, Mr. Lindsey concludes, rendered

him without effective assistance of counsel, in violation of Strickland v.

Washington, 466 U.S. 668 (1984).

      Under Strickland, Mr. Lindsey must show both that his trial counsel’s

performance was deficient and that he was prejudiced by it. Id. at 687. The

Colorado Court of Appeals’ decision rejecting Mr. Lindsey’s Strickland claim

found that the “overwhelming evidence” of his guilt, apart from DNA evidence,

demonstrated that he was not prejudiced by its admission. Among other things,

the Court of Appeals stressed that several eye witnesses, including his victim,

identified Mr. Lindsey as the perpetrator; that Mr. Lindsey was apprehended

                                         -3-
shortly after the crime near the crime scene; and that the police found a weapon

and shower cap in his car, both of which had been described by his victim. See

Lindsey, No. 02CA0541, slip op. at 3. The federal magistrate judge considering

Mr. Lindsey’s habeas petition concluded, after extended discussion, that the

Colorado Court of Appeals’ decision was not unreasonable or contrary to law.

See Op. at 26-29. We agree.

      Mr. Lindsey replies that his counsel’s failure to object amounted not merely

to ineffective assistance but was the product of a conflict of interest. More

specifically, Mr. Lindsey argues that counsel improperly put the budgetary

interests of his office ahead of the interests of his client. And, Mr. Lindsey

stresses, prejudice is presumed in cases where a conflict of interest exists. Cuyler

v. Sullivan, 446 U.S. 335, 349 (1980). The primary difficulty with this line of

argument is that Mr. Lindsey failed to exhaust it in his state court proceedings.

Exhaustion requires a federal habeas petitioner making objections to a state court

ruling on federal constitutional grounds to have first presented his federal

objection in state court. Duncan v. Henry, 513 U.S. 364, 366 (1995); Hawkins v.

Mullin, 291 F.3d 658, 673-74 (10th Cir. 2002). Although Mr. Lindsey did raise

before the state courts the argument that his counsel was ineffective under the

traditional two-prong Strickland standard, the Colorado Court of Appeals

expressly refused to consider Mr. Lindsey’s conflict-of-interest theory because he

did not raise it in his initial post-conviction motion or in his opening appellate

                                         -4-
brief. See Lindsey, No. 02CA0541, slip op. at 3. Under these circumstances, we

are likewise precluded from considering the theory. See Smallwood v. Gibson,

191 F.3d 1257, 1267 (10th Cir. 1999) (holding that petitioner failed to exhaust

state remedies when he based ineffective assistance of counsel claim in habeas

petition on different reasons than those presented in state direct appeal). 1

      2. Mr. Lindsey argues a prior burglary conviction that served as the

predicate for one of his habitual criminality convictions was unconstitutionally

obtained. Specifically, he contends that his guilty plea to grand larceny in

Wyoming in 1978 was not made knowingly because the sentencing court




      1
         We might add that, to establish a conflict of interest, a defendant must
show that his counsel “actively represented conflicting interests” and that the
conflict “actually affected the adequacy of his representation.” Cuyler, 446 U.S.
at 349-50; Hammon v. Ward, 466 F.3d 919, 929 (10th Cir. 2006). Before us,
however, there exists no evidence suggesting either of these things. Even taking
Mr. Lindsey’s allegations as true, they indicate only that counsel’s decision to
forgo a challenge to the DNA evidence, in the face of “overwhelming” non-DNA
evidence connecting Mr. Lindsey to the crime, was the product of a strategic
assessment taken after due consideration of the relevant costs and benefits. Such
decisions are at the heart of trial strategy, and the law is clear that “strategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland, 466 U.S. at 690.

       We note that Mr. Lindsey includes with his petition a motion asking us to
take judicial notice of or consider the Supreme Court’s recent decision in Wright
v. Van Patten, 128 S. Ct. 743, 746 (2008), as he says it is applicable to his
ineffective assistance claim. We grant that motion. The language in Wright Mr.
Lindsey points to, however, merely states the familiar rule of Strickland that, in
some cases, such as when a defendant demonstrates that his counsel had an actual
conflict of interest, prejudice is presumed.

                                          -5-
allegedly failed to advise him of the mens rea element of the Wyoming larceny

statute.

       The magistrate judge found this objection to be without merit on the basis

that neither knowledge nor intent is an element of the Wyoming larceny statute.

As it happens, however, while no mens rea element appears on the face of the

statute, Wyoming courts have interpreted the statute to require the state to prove

that the defendant had a “felonious intent to steal.” See Repkie v. State, 583 P.2d

1272, 1273 (Wyo. 1978) (citation omitted). Even so, there is no constitutional

requirement that a trial court explain each element of an offense to a defendant

offering a guilty plea. See Henderson v. Morgan, 426 U.S. 637, 647 (1976).

Rather, due process requires that a defendant understand the “true nature of the

charge against him.” Id. at 645 (quoting Smith v. O’Grady, 312 U.S. 329, 334

(1941)). And, for the following reasons taken together, we cannot help but

conclude that no reasonable jurist could debate that Mr. Lindsey understood the

charge to which he pled. 2


       2
         The transcript of the Wyoming hearing at which Mr. Lindsey pled guilty
was not submitted to the Court. The Colorado Court of Appeals analyzed the
relevant portion of the transcript that was described and quoted verbatim in the
appellee’s brief. See Brief of Appellee at 19-21, Lindsey, No. 89CA0340, (filed
May 23, 1990). Mr. Lindsey has not challenged the accuracy of that language.
We find that this argument is “readily susceptible to resolution without resort to
the transcript.” Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991); see also Cole v.
New Mexico, No. 02-2195, 2003 WL 256898, at *2 (10th Cir. Feb. 6, 2003)
(incomplete record not inadequate because it “provided the district court with
sufficient information” to determine procedural default).

                                        -6-
      First, the judge read the information at the hearing, and the information

indicated that “[the defendant] did ... feloniously steal, take and carry away the

personal goods of another....” Brief of Appellant at 11, Lindsey, No. 89CA340

(filed Jan. 16, 1990) (emphasis added). This portion of the information surely

signaled that Mr. Lindsey was charged with taking items belonging to others

through something other than mere negligence or mistake.

      Second, and critically to us, Mr. Lindsey made his plea after consulting

with counsel, Brief of Appellee at 22, Lindsey, No. 89CA340 (filed May 23,

1990), and the Supreme Court has instructed that it is appropriate “to presume

that in most cases defense counsel routinely explain the nature of the offense in

sufficient detail to give the accused notice of what he is being asked to admit.”

Henderson, 426 U.S. at 647. Mr. Lindsey offers no reason why such a

presumption should not pertain in this case.

      Finally, Mr. Lindsey’s plea in open court makes plain that he knew he was

admitting guilt to an intentional act. See Brief of Appellee at 20, Lindsey, No.

89CA340 (filed May 23, 1990) (“Court: What did you do? You walked into the

jewelry store? Defendant: Yes, and I asked them if I could see this tray of rings,

and he set them up on the counter and I took them. Court: Was that why you

went in there? Defendant: Yes, sir. Court: What were you going to do with

them? Defendant: Buy drugs.”).




                                         -7-
      3. Mr. Lindsey argues that the court in his first sexual assault trial failed to

advise him of his right to testify, in violation of his Fifth and Fourteenth

Amendment rights. The magistrate judge correctly determined that he failed to

exhaust this claim because the only right to testify objections he brought in state

court were based on state law. By failing to “present federal claims to the state

courts,” Mr. Lindsey did not give the state an “opportunity to pass upon and

correct alleged violations of its prisoners’ federal rights,” Picard v. Connor, 404

U.S. 270, 275 (1971), and thus failed to exhaust this claim.

      4. Finally, Mr. Lindsey argues that the admission of DNA evidence at his

second trial violated his federal constitutional rights. The magistrate judge held

that he failed to exhaust this claim because he did not object to the evidence in

the state courts on federal constitutional grounds. Mr. Lindsey does not dispute

that he failed to present this federal constitutional argument to the state courts,

but argues that his failure to exhaust should be excused because his appellate

counsel was ineffective in not offering the constitutional argument.

      It is surely true that ineffective assistance of counsel can constitute the

“cause” necessary to excuse procedural default. Murray v. Carrier, 477 U.S. 478,

488 (1986). But, to succeed, the ineffective assistance claim must first be

presented to the state courts “as an independent claim before it may be used to

establish cause for procedural default.” Id. at 489. Because Mr. Lindsey did not




                                         -8-
present any such claim in the state courts, the district court’s decision that he

procedurally defaulted is not reasonably debatable.

                                        ***

      Mr. Lindsey’s request for COA is denied and this appeal is dismissed. His

motion to proceed before this court in forma pauperis is granted.



                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




                                          -9-
