                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 30, 2006
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 JOSEPH D. JOHNSON, JR.,

       Petitioner - A ppellant,
                                                         No. 05-1555
 v.                                               (D.C. No. 05-F-1252 (BNB))
                                                           (D . Colo.)
 JOE ORTIZ; JOHN SU THERS, The
 Attorney General of the State of
 Colorado,

       Respondents - Appellees.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Petitioner-Appellant Joseph Johnson, a state inmate appearing pro se, seeks

a certificate of appealability (COA) allowing him to appeal the district court’s

order denying relief on his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. For a COA to be granted, M r. Johnson must demonstrate that

“jurists of reason would find it debatable w hether the petition states a valid claim

of the denial of a constitutional right.” Slack v. M cDaniel, 529 U.S. 473, 484

(2000). For a denial based upon procedural grounds, he must demonstrate “that

jurists of reason would find it debatable w hether 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.” Id. W e

conclude that the district court’s procedural bar ruling is not reasonably

debatable, and thus w e deny a COA and dismiss the appeal.



                                    Background

      M r. Johnson was convicted, following a guilty plea, of first-degree burglary

and first-degree assault, and sentenced to 12 years and 20 years respectively, to

run consecutively followed by 5 years of mandatory parole. By way of

background, on February 15, 2002, the public defender’s office informed the trial

court that M r. Johnson’s counsel was medically unavailable to represent him, and

that another attorney, if appointed, could not be adequately prepared to try the

case within the speedy trial period. The trial court informed M r. Johnson that he

had two options: (1) go to trial within the speedy trial time period but

unrepresented; or (2) w aive his right to a speedy trial and obtain new counsel.

      M r. Johnson initially indicated he would prefer the first option, but after

being more fully informed regarding the difficulty of proceeding pro se by the

trial court, M r. Johnson chose to have representation, and waived his right to a

speedy trial. The trial court accepted the waiver and appointed the public

defender’s office and another lawyer (advisory counsel) as co-counsel. The

purpose of the arrangement was so that the public defender’s office would take

care of costs and an investigator. The public defender’s office ultimately

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withdrew, but M r. Johnson was represented by counsel through the plea

agreement and sentence by advisory counsel who became trial counsel. M r.

Johnson filed a pro se motion to dismiss the charges because his right to a speedy

trial was violated. The trial court denied the motion because M r. Johnson was

represented by counsel. M r. Johnson then pleaded guilty to the two charges

above in exchange for dismissal of the remaining charges against him.

      Following his guilty plea, M r. Johnson filed a Colo. R. Crim. P. 35(c)

motion alleging ineffective assistance of counsel, a violation of his state statutory

right to a speedy trial and that he was coerced into entering his guilty plea. His

motion was denied by the trial court after an evidentiary hearing on certain

claims, and the Colorado Court of Appeals affirmed that disposition. II R. Ex. D.

The Colorado Supreme Court denied certiorari review. M r. Johnson then sought

federal habeas relief based on an alleged violation of his constitutional right to a

speedy trial, which was caused by an alleged failure by the prosecution to keep a

contractual promise purportedly underlying his w aiver of speedy trial.



                                     Discussion

      The district court adopted the report and recommendation of the magistrate

judge, concluding that M r. Johnson’s speedy trial claim should be considered

procedurally barred. O n appeal, M r. Johnson raises the same argument as below ,

viz., that he “was made a promise by the State Court that if [he] waive[d] [his]

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speedy trial right, [t]hat [he] would receive dual representation.” Aplt. Br. at 2.

      A federal habeas petitioner, like M r. Johnson, must fairly present his

federal claim to the state courts. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor,

404 U.S. 270, 275-76 (1971). On habeas review, this court will not consider

issues that have been defaulted in state court on an independent and adequate

state ground, unless the petitioner can demonstrate cause and prejudice or a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50

(1991). Indeed, a state procedural ground is independent if it relies on state law ,

rather than federal law, as the grounds for its decision. Hickman v. Spears, 160

F.3d 1269, 1271 (10th Cir. 1998). In order to find the state ground adequate, it

must be “strictly or regularly followed” and “applied evenhandedly to all similar

claims.” Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998) (internal

citations and quotations omitted).

      W e have reviewed the record in this case and conclude that it is not

reasonably debatable w hether M r. Johnson fairly presented his federal claim to

the state courts. He did not–the claim was that his state statutory right to a

speedy trial had been violated, and that is the claim that the state courts decided.

M r. Johnson was required to argue his federal speedy trial claim in the state

courts. As he has failed to do so, M r. Johnson has procedurally defaulted this

claim. Coleman, 501 U.S. at 731-32.

      Of course, if M r. Johnson can either (1) show cause for the default and

                                         -4-
actual prejudice as a result of the alleged violation of law ; 1 or (2) demonstrate

that a failure of this court to consider the claim will result in a fundamental

miscarriage of justice, the procedural bar may be excused. Thomas v. Gibson,

218 F.3d 1213, 1221 (10th Cir. 2000). Upon review of the record in its entirety,

we do not think that the district court’s conclusion that M r. Johnson failed to

adequately show cause or prejudice, or a fundamental miscarriage of justice, is

reasonably debatable.

      Accordingly, we DENY a COA and DISM ISS the appeal. W e GRANT the

motion for leave to proceed IFP, and DENY the petition for appointment of

counsel.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
         W e note that an unconditional plea of guilty waives all non-jurisdictional
defects including Sixth Amendment speedy trial claims. Tollett v. Henderson,
411 U.S. 258, 267 (1973); United States v. Andrew s, 790 F.2d 803, 809 (10th Cir.
1986) (applying rule to federal Speedy Trial Act claims); see also Doggett v.
United States, 505 U.S. 647, 657 n.3 (1992) (Sixth Amendment speedy trial claim
preserved by a conditional guilty plea). M oreover, M r. Johnson has not addressed
prejudice from the standpoint of what a colorable speedy trial claim requires. See
Barker v. W ingo, 407 U.S. 514, 530-33 (1972). Finally, M r. Johnson’s effort to
show prejudice is undercut by the factual findings of the Colorado courts
supporting their conclusions that M r. Johnson received the benefit of his plea
bargain, and that his plea was knowing and voluntary. II R. Ex. D at 8-9.

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