                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 29, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 ALBERT CRAMER,

              Petitioner - Appellant,

 v.                                                      No. 11-4036
                                               (D.C. No. 2:07-CV-00681-DAK)
 STATE OF UTAH,                                           (D. Utah)

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Albert Cramer, appearing pro se, requests a certificate of appealability

(COA) to appeal the district court’s denial of his application for relief under

28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal

denial of § 2254 application). The court denied the application on the ground that

the claims were procedurally defaulted because Mr. Cramer had failed to exhaust

his state remedies and his claims would now be procedurally barred if pursued in

state court. No reasonable jurist could debate the correctness of the district

court’s decision. Therefore, we deny Mr. Cramer’s request for a COA and

dismiss this appeal.
I.    BACKGROUND

      Mr. Cramer was convicted on September 22, 1999, on two counts of

aggravated sexual abuse of a child. On January 25, 2002, the Utah Supreme

Court affirmed his conviction on appeal. See State v. Cramer, 44 P.3d 690, 692

(Utah 2002) (Cramer I). That August he filed a petition for postconviction relief

in Utah state district court; it was denied in July 2005. The Utah Court of

Appeals affirmed the denial in December 2006, see Cramer v. State, 153 P.3d

782, 784 (Utah Ct. App. 2006) (Cramer II); and the Utah Supreme Court denied

his petition for certiorari in April 2007, see Cramer v. State, 168 P.3d 339 (Utah

2007) (unpublished table decision) (Cramer III).

      On October 19, 2007, Mr. Cramer’s § 2254 application was filed in the

United State District Court for the District of Utah. The application claimed that

(1) he received ineffective assistance of counsel because his trial counsel failed to

call witnesses requested by Mr. Cramer, did not inform him of his right to testify

on his own behalf, and failed to impeach the alleged victim’s testimony; (2) he

was denied access to the alleged victim’s records; and (3) the Utah State Division

of Child and Family Services denied him due process by delaying its hearing on

child abuse. The district court ruled that Mr. Cramer had not exhausted any of

these claims by properly pursuing them, on direct appeal or in postconviction

proceedings, all the way to the Utah Supreme Court. The court noted that

Mr. Cramer had raised two similar claims in the Utah Supreme Court—(1) denial

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of his purported right to review (without prior vetting by the trial court in camera)

the alleged victim’s medical records, see Cramer I, 44 P.3d at 694–95, and (2)

denial of the right to be informed that he could testify on his own behalf, see

Cramer III, 168 P.3d at 339—but both claims were expressly based solely on the

Utah Constitution. And it pointed out that the one federal constitutional issue

raised in the § 2254 application that had been presented to the Utah Supreme

Court—the trial court’s alleged error in not disclosing to Mr. Cramer the material

medical records reviewed by the trial court in camera—was disposed of by the

state court on the procedural ground that Mr. Cramer had not included the

documents in the appellate record. See Cramer I, 44 P.3d at 696–97.

      The district court then determined that the issues raised by Mr. Cramer in

his § 2254 application could no longer be reviewed in state court because they

could have been raised in his prior state-court proceedings. See Utah Code Ann.

§ 78B-9-106(1)(c), (d) (West 2010) (“A person is not eligible for relief under [the

Utah Post-Conviction Remedies Act] upon any ground that . . . could have been

but was not raised at trial or on appeal . . . or could have been, but was not, raised

in a previous request for post-conviction relief.”) And because Mr. Cramer had

established neither cause for the default nor a fundamental miscarriage of justice

based on actual innocense, it held that his claims were barred from review under

§ 2254. See McCraken v. Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (claims

defaulted in state court on “an independent and adequate state procedural ground”

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are procedurally barred for purposes of federal habeas review unless the petitioner

“can demonstrate cause and prejudice or a fundamental miscarriage of justice.”

(internal quotation marks omitted)).

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see Sellers v. Ward, 135 F.3d 1333, 1339 (the right allegedly

violated must be a federal, not a state, right). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. Where the application was denied on procedural grounds, the

applicant faces a double hurdle. Not only must the applicant make a substantial

showing of the denial of a constitutional right, but he must also show “that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not




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conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.

      In order to obtain federal habeas relief, a state prisoner must “exhaust[] the

remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(A). “The

exhaustion requirement is satisfied if the issues have been properly presented to

the highest state court, either by direct review of the conviction or in a

postconviction attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999)

(internal quotation marks omitted); see Olson v. McKune, 9 F.3d 95, 95 (10th Cir.

1993) (“A state prisoner bringing a federal habeas corpus action bears the burden

of showing that he has exhausted available state remedies.” (brackets and internal

quotation marks omitted)). If an applicant fails to exhaust state remedies and

state courts “would now find the claims procedurally barred[,] the claims are

considered exhausted and procedurally defaulted for purposes of federal habeas

relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (internal

quotation marks omitted).

      Because Mr. Cramer has proceeded pro se, we construe his pleadings

liberally. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1210 n.1 (10th Cir.

2009). Mr. Cramer’s brief in this court recites four issues: (1) that the district

court erred by failing to address any of his constitutional claims on the merits; (2)

that his trial attorneys violated his right to have witnesses, including himself,

testify on his behalf; (3) that he received ineffective assistance of counsel when

                                          -5-
his trial attorneys failed to obtain and use records to impeach the alleged victim’s

testimony; and (4) that workers in the Utah Division of Child and Family Services

violated the law and his due-process rights. Nowhere, however, does he

challenge the grounds of the district court’s rulings on exhaustion and procedural

bar. Nor do we discern any error in these rulings. Even if we treat Mr. Cramer’s

assertions of innocence in his brief to us as a claim that his procedural default

should be excused because of his actual innocence, we could not grant him a

COA. Although actual innocence can overcome a procedural default, see Schlup

v. Delo, 513 U.S. 298, 321 (1995), the district court correctly observed that actual

innocence must be shown by newly available evidence and that Mr. Cramer’s

showing is wholly inadequate. See id. at 324 (petitioner must “support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial”); id. at 327 (petitioner must

“show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.”).

      In short, no reasonable jurist could find it debatable whether the district

court was correct in its procedural ruling.




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III.   CONCLUSION

       We DENY Mr. Cramer’s application for a COA and DISMISS the appeal.

We GRANT Mr. Cramer’s motion to proceed in forma pauperis.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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