                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                         September 7, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 ISIAH BO’CAGE VOS,

           Petitioner - Appellant,                            No. 12-4084
                                                     (D.C. No. 2:08-CV-00869 CW)
 v.                                                            (D. Utah)

 STEVEN TURLEY,

           Respondent – Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Isiah Bo’Cage Vos, a Utah prisoner proceeding pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254

petition for writ of habeas corpus. We deny his request for a COA and dismiss this

matter.

       * This order is not binding precedent, except under the doctrines of law of the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.
       1
         Because Mr. Vos is proceeding pro se, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe a [pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).
                                    I.     BACKGROUND

         Mr. Vos was convicted in Utah state district court of one count of first-degree

felony murder with a firearm enhancement. He was sentenced to a term of five years to

life, with an additional year to be served consecutively.

         Mr. Vos appealed his conviction to the Utah Court of Appeals. He argued that his

trial counsel had provided ineffective assistance and that the district court had erred in

concluding that a statement he made to the police did not violate Miranda v. Arizona, 384

U.S. 436 (1966). See State v. Vos, 164 P.3d 1258, 1260 (Utah Ct. App. 2007). The court

of appeals affirmed the district court.

         Mr. Vos next filed a certiorari petition to the Utah Supreme Court, asserting only

one challenge:

                Did the Court of Appeals err in concluding a defendant’s
                unwarned statement is admissible at trial because the
                defendant was represented by counsel during custodial
                interrogation, where the defendant was not given Miranda
                warnings, was not otherwise informed of his Fifth
                Amendment rights against self-incrimination, and did not
                voluntarily waive those rights?

Vos v. Turley, 2:08-CV-869 CW, 2012 WL 1564590, at *1 (D. Utah May 2, 2012). The

Utah Supreme Court summarily denied his petition. State v. Vos, 186 P.3d 347 (Utah

2007).

         Mr. Vos then filed a § 2254 habeas petition in the United States District Court for

the District of Utah. The district court identified six issues in Mr. Vos’s briefs: that (1)

counsel “inadequately investigated the situation before advising Petitioner to talk to the
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police;” (2) counsel “inappropriately locked [him] into an ‘imperfect self defense’

defense, excluding other possible defenses;” (3) counsel “failed to require police to give

[him] a Miranda warning;” (4) counsel “coerced [him] into giving” a statement to the

police; (5) counsel “posed a conflict of interest when he talked, unauthorized, to a

detective about [his] case, implicating [him];” and (6) the state courts mishandled his

Miranda issue. Vos, 2012 WL 1564590 at *1.

       The district court denied the petition. It concluded that (1) the ineffective

assistance claims had not been exhausted in the state courts, (2) these claims would now

be barred by state procedural law, and (3) Mr. Vos had not demonstrated any of the

circumstances that would excuse this procedural default. It denied the Miranda claim

because the Utah Court of Appeals did not err under the deferential lens of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

                                   II.    DISCUSSION

       Mr. Vos now argues that the federal district court (1) should have addressed his

ineffective assistance claims regarding his appellate counsel’s failure to present his

ineffective assistance of trial counsel claims to the Utah Supreme Court; (2) should have

granted him a stay so that he could exhaust his ineffective assistance of trial counsel

claims before the Utah Supreme Court; (3) erred in ruling that his trial was not prejudiced

when he was not read his Miranda rights; and (4) should have ruled that the Utah Court

of Appeals incorrectly applied Miranda.

       We may issue a COA “only if the applicant has made a substantial showing of the
                                             -3-
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard, Mr. Vos

must show that the district court’s resolution of any constitutional claims was either

“debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       When a district court dismisses a 28 U.S.C. § 2254 application on procedural

grounds without reaching the underlying constitutional claim, the applicant must show

that it is debatable whether there is “a valid claim of the denial of a constitutional right

and that . . . it [is] debatable whether the district court was correct in its procedural

ruling.” Id.

       In determining whether the COA applicant has made the required showing, we

must account for AEDPA. It provides that if a state court adjudicated the merits of a

claim, a federal court cannot grant habeas relief unless the state court decision “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), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). “Therefore, for those

of [Mr. Vos’s] claims that were adjudicated on the merits in state court, AEDPA’s

deferential treatment of state court decisions must be incorporated into our consideration

of his request for COA.” Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir.2007)

(quotations omitted).

       With this framework in mind, we will address Mr. Vos’s arguments.


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A.       Ineffective Assistance of Appellate Counsel

         Mr. Vos argues that the district court should have addressed the ineffective

assistance of his appellate counsel in preparing his certiorari petition to the Utah Supreme

Court.

         The closest Mr. Vos came to raising the issue in the district court was in his reply

to the Government’s response to his § 2254 petition. He wrote, “I am not knowledgable

[sic] about the law & so this mistake was due to my counsel at the time’s actions, & also

me not knowing enough about the law to catch when something is wrong.” ROA at 565.

Mr. Vos did not adequately raise and argue the issue, and the district court therefore did

not err in not addressing it. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th

Cir. 1998). Any claims not raised in the district court are waived on appeal. Parker v.

Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).

         Even if Mr. Vos had not waived this claim, there was no error. Mr. Vos’s filing to

the Utah Supreme Court was a certiorari petition, and he “had no absolute right to appeal

his convictions to the” Utah Supreme Court. Wainwright v. Torna, 455 U.S. 586, 587

(1982); see also Utah Code Ann. § 78A-3-102 (“The Supreme Court has sole discretion

in granting or denying a petition for writ of certiorari for the review of a Court of Appeals

adjudication”). There is no “constitutional right to counsel to pursue discretionary state

appeals or applications for review.” Wainwright, 455 U.S. at 587. “Since [Mr. Vos] had

no constitutional right to counsel, he could not be deprived of the effective assistance of

counsel by his . . . counsel’s failure to” preserve all his claims at the Utah Supreme Court.
                                              -5-
Id. at 587-88.

       The district court did not err in not addressing Mr. Vos’s claim about ineffective

assistance of appellate counsel regarding his writ of certiorari. We deny Mr. Vos’s

request for a COA on this issue.

B.     Failure to Grant a Stay

       Mr. Vos argues that the district court should have granted him a stay to exhaust his

ineffective assistance of trial counsel claims before the Utah Supreme Court.

       The district court dismissed Mr. Vos’s ineffective assistance claims as

procedurally barred. It found that Mr. Vos had failed to “properly present to the highest

available Utah court the federal constitutional issues on which he seeks relief” and that

Mr. Vos would now be ineligible to exhaust them. Vos, 2012 WL 1564590 at *1.

       A federal court generally may not review a claim for federal habeas relief unless

“the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A). “A claim has been exhausted when it has been ‘fairly presented’ to the

state court.” Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009). “Fair

presentation means that the substance of the claim must be raised in state court. The

allegations and supporting evidence must offer the state courts a fair opportunity to apply

controlling legal principles to the facts bearing upon [the] constitutional claim.” Id.

(quotations omitted).

       Even if a claim has not been fairly presented in state court, it will be “considered

exhausted and procedurally defaulted for purposes of federal habeas relief” if there is an
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anticipatory procedural bar. Cannon v. Gibson, 259 F.3d 1253, 1266 n.11 (10th Cir.

2001); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (“[I]f state-court remedies

are no longer available because the prisoner failed to comply with the deadline for

seeking state-court review or for taking an appeal, those remedies are technically

exhausted . . . .” (citation omitted)). An “[a]nticipatory procedural bar occurs when the

federal courts apply [a] procedural bar to . . . [a] claim [not fairly presented to the state

court] that would be procedurally barred under state law if the petitioner returned to state

court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007)

(quotations omitted).

       The district court concluded that Mr. Vos could have presented his ineffective

assistance of trial counsel claims in his certiorari petition to the Utah Supreme Court and

that, because he did not, the claims would not be allowed now as a matter of Utah

procedural law. See Utah Code Ann. § 78B-9-106(1) (2012) (“A person is not eligible

for relief under this chapter upon any ground that . . . could have been but was not raised

at trial or on appeal.”). Mr. Vos has not challenged the district court’s conclusion that if

he tried to bring his claims now in state court, they would be defaulted on an independent

and adequate state procedural ground. Mr. Vos therefore faces an “anticipatory

procedural bar” of the ineffective assistance claims that the district court found were not

exhausted in state court. Those claims are thus procedurally defaulted for purposes of

habeas review.

       To overcome this procedural bar to habeas review, Mr. Vos must show either
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“cause and prejudice or a fundamental miscarriage of justice.” Anderson, 476 F.3d at

1140. To show cause, a petitioner must demonstrate that “some objective factor external

to the defense impeded [his] efforts to comply” with state law. Murray v. Carrier, 477

U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate that he suffered

“actual prejudice as a result of the alleged violation of federal law.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991) (abrogated on other grounds by Martinez v. Ryan,

132 S. Ct. 1309, 1315 (2012)). The “fundamental miscarriage of justice” exception “is a

markedly narrow one, implicated only in extraordinary case[s] where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.”

Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quotations omitted) (alteration in

original).

       The district court found that Mr. Vos failed to show that some factor external to

his defense impeded him from complying with the state’s procedural rules. Mr. Vos had

argued that his failure to comply was due to his lack of knowledge and the

ineffectiveness of his appellate counsel. The district court rejected these arguments

because Mr. Vos’s lack of knowledge is a factor internal to his defense and because

“[t]here is no constitutional right to an attorney in state post-conviction proceedings.”

Vos, 2012 WL 1564590 at *2 (citation omitted) (quotations omitted) (alteration in

original). The district court correctly concluded that Mr. Vos’s lack of knowledge was an

internal rather than an external factor to his defense. Moreover, as discussed above, Mr.

Vos had no right to the effective assistance of counsel for his petition to the Utah
                                             -8-
Supreme Court. Any ineffectiveness of such counsel therefore cannot overcome the

procedural bar to habeas review. Because Mr. Vos has shown no cause to excuse his

failure to comply with the state’s procedural rule, we need not reach the question of

actual prejudice. See Coleman, 501 U.S. at 750.

       Mr. Vos has not shown that “it [is] debatable whether the district court was correct

in its procedural ruling.” Slack, 529 U.S. at 484. We deny his COA as to the

ineffectiveness claim.

C.     Mr. Vos’s Miranda Claims

       Mr. Vos argues that the Utah Court of Appeals misinterpreted Miranda v. Arizona,

384 U.S. 436, 467 (1966), in deciding that his rights were not violated when a statement

he made to the police was admitted at trial. The district court reviewed the Utah Court of

Appeals decision under the AEDPA standard, which asks whether the state court reached

“a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1).

       The Utah Court of Appeals concluded that effective safeguards other than the

Miranda warnings may be constitutionally permissible. Vos, 164 P.3d at 1263; see

Miranda v. Arizona, 384 U.S. at 467 (“we cannot say that the Constitution necessarily

requires adherence to any particular solution for the inherent compulsions of the

interrogation process”). In particular, it concluded that the presence of counsel at Mr.

Vos’s interrogation adequately substituted for Miranda warnings. Vos, 164 P.3d at 1263;

see Miranda, 384 U.S. at 466 (“The presence of counsel . . . would be the adequate
                                            -9-
protective device necessary to make the process of police interrogation conform to the

dictates of the privilege [against self-incrimination].”); see also Edwards v. Arizona, 451

U.S. 477, 485-86 (1981) (“The Fifth Amendment right identified in Miranda is the right

to have counsel present at any custodial interrogation.”); Michigan v. Mosley, 423 U.S.

96, 112-13, 116-17 (1975) (“Miranda held that any confession obtained when not

preceded by the required warnings or an adequate substitute safeguard was per se

inadmissible in evidence. . . . [L]anguage in Miranda suggests that the presence of

counsel is the only appropriate alternative”); United States v. Guariglia, 757 F. Supp.

259, 264 (S.D.N.Y. 1991) (“[I]f Miranda warnings are meant to protect a defendant until

he can consult counsel, . . . they are not necessary when counsel is present.”); Com. v.

Simon, 923 N.E.2d 58, 67 (Mass. 2010), cert. denied, 131 S. Ct. 181 (2010).

       The federal district court concluded that the Utah Court of Appeals’ application of

Miranda was not unreasonable. Vos, 2012 WL 1564590 at *6.

       Mr. Vos argues here that his counsel’s presence at his interrogation was not an

adequate substitute because his counsel failed to protect his rights against self-

incrimination. But Mr. Vos confuses his challenge to the district court’s AEDPA review

of the Utah Court of Appeals’ interpretation of Miranda with an ineffective assistance of

counsel argument. The latter concerns his counsel’s alleged failure to protect his rights at

his interrogation. The former concerns whether the state court’s decision on Miranda

compliance was unreasonable. In short, the ineffective assistance of counsel argument

and the Miranda challenge are distinct issues.
                                            -10-
       The district court held that the state court’s application of Miranda was not

unreasonable under AEDPA’s standard of review. See 28 U.S.C. § 2254(d)(1). That is,

it held that Mr. Vos has not demonstrated that the state court’s interpretation and

application of Miranda “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). Under AEDPA,

the district court did not need to decide whether the state court’s interpretation of

Miranda was correct, only if it was unreasonable. Reasonable jurists could not debate the

district court’s conclusion that the state court’s Miranda analysis was not unreasonable.

See Slack, 529 U.S. at 475. Accordingly, we deny Mr. Vos a COA on his Miranda

claims.

                                    III. CONCLUSION

       We deny Mr. Vos’s request for a COA and dismiss this matter. Mr. Vos’s request

to proceed in forma pauperis is denied.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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