                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ROLLAND G. BERRETH,

                Petitioner-Appellant,

    v.                                                   No. 99-3118
                                                    (D.C. No. 97-CV-3211)
    DAVID R. MCKUNE; ATTORNEY                              (D. Kan.)
    GENERAL OF KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , Circuit Judges.




         After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. 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.
      Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, and requested a certificate of appealability from the district court. The

district court denied petitioner’s request for a certificate appealability and

dismissed his habeas petition as procedurally barred. Petitioner appeals the

dismissal of his habeas petition and asks that we issue a certificate of

appealability. Because petitioner has not made “a substantial showing of the

denial of a constitutional right,” we deny his application for a certificate of

appealability and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      Petitioner was convicted in Kansas state court of aggravated kidnaping and

aggravated sodomy. He appealed his conviction to the Kansas Court of Appeals,

and that court affirmed his conviction on January 10, 1997. Five days before the

time for seeking review from the Kansas Supreme Court expired, petitioner filed a

motion for an extension of time in which to file his petition for review. After the

time for seeking review had expired, petitioner filed his petition for review. On

March 24, 1997, the Kansas Supreme Court denied the motion for extension of

time and denied the petition for review.

      A federal habeas petitioner is required to exhaust all available state

remedies before seeking federal habeas review.     See Coleman v. Thompson , 501

U.S. 722, 731 (1991). Under Kansas law, petitioner had the right to raise his

federal claims before the Kansas Supreme Court and, therefore, he was required


                                           -2-
to present his claims to that court before seeking federal habeas relief.      See

O’Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). Petitioner’s failure to perfect a

timely appeal to the Kansas Supreme Court constituted a procedural default of his

claims. Although he has met the technical requirements of exhaustion in that

there are no state remedies any longer available to him,      see Coleman , 501 U.S. at

732, “the procedural default bars federal habeas review of the claims,”        Andrews v.

Deland , 943 F.2d 1162, 1188 (10th Cir. 1991) (quotation omitted). It is clear that

the Kansas Supreme Court refused to hear petitioner’s claims because he did not

file a timely petition for review, an independent and adequate state ground.         See

Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). Consequently, petitioner

can obtain federal habeas review only if he can establish cause for the procedural

default and prejudice resulting therefrom, or that failure to consider his claims

“will result in a fundamental miscarriage of justice.”      Coleman , 501 U.S. at 750.

       The district court ordered petitioner to show cause why his habeas petition

should not be dismissed as procedurally barred on account of his state procedural

default. In his response to the district court’s order, petitioner did not assert any

cause for failing to comply with the state procedural rule. In his amended habeas

petition, however, petitioner stated that his attorney did not seek a timely review

from the Kansas Court of Appeals’ decision. Petitioner further stated that

       [p]etitioner was not notified of this adverse ruling by the Kansas
       Court of Appeals, and not until after 25 days had elapsed, leaving

                                             -3-
       petitioner with only 5 additional days to seek different counsel to
       perfect a timely review. Petitioner’s family members [paid] appellant
       counsel $20,000.00 to perfect his appeal, but counsel refused to seek
       review by the Kansas Supreme Court without additional payment of
       an additional $1,500.00. Appellant counsel never moved the court to
       have different counsel assigned and petitioner never waived his
       rights to have the Kansas Supreme Court review the unfavorable
       decision made by the Kansas Court of Appeals. Petitioner is entitled
       to counsel as a matter of right on direct appeal.

Dist. Ct. R., Second Amended Complaint at 6. Construing petitioner’s pleadings

liberally because he appears      pro se , the district court considered these statements

as an allegation of ineffective assistance of counsel amounting to cause to avoid

the procedural bar.

       Initially, we reject the notion that petitioner’s counsel was ineffective for

failing to file a timely appeal with the Kansas Supreme Court. Petitioner had no

constitutional right to counsel on his discretionary appeal to the Kansas Supreme

Court. See Wainwright v. Torna , 455 U.S. 586, 587-88 (1982) (relying on          Ross v.

Moffitt , 417 U.S. 600 (1974));     Foy v. State , 844 P.2d 744, 744-45 (Kan. Ct. App.

1993). Consequently, petitioner can not claim that his appellate counsel’s failure

to file a timely discretionary appeal denied him of his right to effective assistance

of counsel and was, therefore, cause for his procedural default.

       In addition, petitioner stated that his appellate counsel did not notify him of

the Kansas Court of Appeals’ decision until five days before the time expired for

filing a petition for review with the Kansas Supreme Court. If we construe this as


                                              -4-
an allegation of ineffective assistance of counsel amounting to cause for his

procedural default, we look to the standard set forth in       Strickland v. Washington ,

466 U.S. 668 (1984) to determine whether petitioner received effective assistance

of counsel. See Murray v. Carrier , 477 U.S. 478, 488 (1986).

       It does not appear from the record before us, however, that petitioner ever

exhausted his independent claim of ineffective assistance of counsel as cause for

his procedural default by presenting it to the state courts.       See id. at 489. Even

though it appears this independent claim has not been exhausted, we address it on

the merits because it is clear that petitioner suffered no prejudice and, therefore,

did not receive ineffective assistance of counsel.        See Van Woudenberg ex rel.

Foor v. Gibson , 211 F.3d 560, 569 (10th Cir. 2000) (citing 28 U.S.C. §

2254(b)(2) for proposition that “unexhausted claim may be denied on its merits”).

To show ineffective assistance of counsel, petitioner must establish that his

attorney’s performance fell below an objective standard of reasonableness and

that the deficiency prejudiced his defense.         See Strickland , 466 U.S. at 687-88.

Even if it could be said that counsel’s failure to notify petitioner of the decision

affirming his conviction immediately was objectively unreasonable, which we do

not decide, petitioner has not shown prejudice. Petitioner admits he knew of the

decision before the time for filing a petition for review with the Kansas Supreme

Court expired, and, in fact, petitioner chose to file a motion for extension of time


                                              -5-
instead of filing the petition for review. Because petitioner did not receive

ineffective assistance of counsel, he has not shown cause for his procedural

default, and federal review of his habeas claims is barred.   1



       The application for a certificate of appealability is DENIED, and the appeal

is DISMISSED.



                                                        Entered for the Court



                                                        Monroe G. McKay
                                                        Circuit Judge




1
      We note that petitioner does not make any allegation or showing of actual
innocence to meet the “fundamental miscarriage of justice” exception to
procedural bar. See Andrews , 943 F.2d at 1186.

                                            -6-
