F I L E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                                          PUBLISH
                                                                                     DEC 3 1997
                          UNITED STATES COURT OF APPEALS
                                                                               PATRICK FISHER
                                                                                         Clerk
                                      TENTH CIRCUIT



 RICHARD S. DEMAREST,

           Petitioner-Appellee,

 v.                                                     No. 95-1535

 WILLIAM PRICE; GALE NORTON,
 Attorney General of the State of Colorado,

           Respondents-Appellants.


                APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLORADO
                               (D.C. No. 91-N-827)


Robert Mark Russel, First Assistant Attorney General, Chief, Criminal Enforcement
Section, Gale A. Norton, Colorado Attorney General, with him on the brief, Denver,
Colorado, for Respondents-Appellants

Vicki Mandell-King; Assistant Public Defender, Chief, Appellate Division; Michael G.
Katz, Federal Public Defender, with her on the brief, Denver, Colorado, for Petitioner-
Appellee


Before HENRY, MURPHY, and RONEY*, Circuit Judges.


HENRY, Circuit Judge.


       *
                The Honorable Paul H. Roney, Senior Circuit Judge for the Eleventh Circuit
sitting by designation.
       Respondents William Price and Gale Norton1 appeal the district court’s order

granting Richard Demarest’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254 and vacating his conviction for first degree murder in Jefferson County, Colorado.

See Demarest v. Price, 

(D. Colo. 1995). The district court concluded

that by failing to adequately investigate the case, interview witnesses, and present medical

evidence, Mr. Demarest’s attorney in the Jefferson County murder trial deprived him of

his Sixth Amendment right to effective assistance of counsel. See 

Respondents argue on appeal that Mr. Demarest may not seek redress in federal court

because he did not exhaust his state court remedies in that he did not fairly present

important evidence regarding his trial counsel’s performance to the Colorado state courts.

       Initially, we conclude that the provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), that amend

the habeas corpus statutes should not be applied to this case because Mr. Demarest’s

petition was filed before the AEDPA’s effective date. See Lindh v. Murphy, 

, 2068 (1997). Then, applying the pre-AEDPA habeas corpus provisions, we hold

that Mr. Demarest did not exhaust his state remedies. We therefore vacate the district

court’s order granting Mr. Demarest’s petition and remand the case to the district court

for several determinations.




       1
              We refer to respondents collectively as “the state.”

                                                2
       On remand, we direct the district court to first determine whether Mr. Demarest’s

ineffective assistance of counsel claim, based on the new evidence presented at the

federal evidentiary hearing, would now be procedurally barred under Colorado law. In

the event that the district court concludes that Mr. Demarest’s claim would not now be

procedurally barred, we hold, it should dismiss the claim without prejudice so that it may

now be adjudicated in the Colorado courts. Alternatively, if the district court concludes

that Mr. Demarest’s claim would now be procedurally barred in the Colorado courts, it

should then determine whether Mr. Demarest can establish either that there was cause for

the default and prejudice resulting from the violation of federal law, or that failure to

consider his claim on the merits would result in a fundamental miscarriage of justice. In

the event that Mr. Demarest establishes either cause and prejudice or a fundamental

miscarriage of justice, the court should proceed to the merits.



                                    I. BACKGROUND

       Early in the afternoon of February 9, 1981, petitioner Demarest called the

Jefferson County Sheriff’s Department from a neighbor’s home and reported that he had

just discovered the body of his friend Ronald Hyams in the house that the two shared in

Evergreen, Colorado. “In a panicked, sobbing voice,” Demarest, 905 F. Supp at 1436,

Mr. Demarest told the emergency operator that it appeared that Mr. Hyams had been

murdered. After placing the call, Mr. Demarest ran back to his house and sat down under


                                              3
a tree in the front yard next to a gravel driveway, where a neighbor waited with him for

law enforcement officials to arrive.

        Approximately ten minutes after Mr. Demarest’s call, Jefferson County deputy

sheriffs discovered Mr. Hyams’s body in a downstairs bedroom. Mr. Hyams’s head was

wrapped in a bathrobe and there were puncture wounds around his neck and collarbone.

The pathologist who conducted the autopsy testified that Mr. Hyams died from “the

combined effects of trauma to the head[,] . . . blood loss from the stab wound in the left

neck[,] and from the complication of strangulation of the neck.” 

vol.

V, Trial Tr. of State v. Demarest, No. 81 CR 259, Jefferson County District Court, at

638).

        During the period immediately after Mr. Hyams’s murder, Mr. Demarest

experienced substantial emotional trauma and required psychiatric treatment. On the day

of the murder, a neighbor testified, Mr. Demarest was distraught and in shock. As a

result, medical personnel took him to a local emergency room. Carol Lee Held, Mr.

Demarest’s other housemate, took him home later that day, but she observed that Mr.

Demarest soon grew unresponsive and appeared to fall into a trance. Ms. Held called the

sheriff’s office for assistance, and when the deputies arrived, they found Mr. Demarest

“lying on the floor in a fetal position, tightening his muscles, and clenching his fists.” 

(citing Trial Tr. of State v. Demarest, No. 81 CR 259, Jefferson County District

Court, at 289-90). The deputies took Mr. Demarest back to the local medical center, and


                                              4
he was then transferred to the psychiatric ward of another hospital. A psychiatrist

diagnosed him as suffering from adult situational reaction caused by acute stress and

treated him with a variety of drugs. Mr. Demarest was released from the psychiatric ward

on February 11, 1981.

       During an interrogation at the sheriff’s office on February 12, 1981, Mr. Demarest

suffered another breakdown. When shown a picture of Mr. Hyams, he began shaking, fell

on the floor, and curled into a fetal position. Mr. Demarest was taken back to the

hospital’s psychiatric ward, where he remained until February 23, 1981. Another

psychiatrist concluded that he suffered from an “adult situational disorder with

withdrawal[,]”see 

and treated him with prescription drugs.

       On the three separate occasions shortly after the murder when deputies questioned

him, Mr. Demarest denied any involvement in Mr. Hyams’s murder. He reported that on

the morning of the murder, he had borrowed Mr. Hyams’s car, stopped at a McDonald’s

restaurant to drink coffee, and had then driven to Mr. Hyams’s dentist’s office to pick him

up after an appointment. When he arrived at the dentist’s office, he learned that Mr.

Hyams had missed the appointment. According to Mr. Demarest, he then returned home

and discovered the body.

       During the questioning, deputies observed that Mr. Demarest had scratches on the

back of his hands and face. When asked about the scratches, Mr. Demarest said that he

had pounded his fists into the gravel driveway while waiting for emergency personnel


                                             5
after discovering Mr. Hyams’s body. As to his face, Mr. Demarest said that he had

scratched it at the medical center on the afternoon of the murder.

       In March 1981, the Jefferson County District Attorney charged Mr. Demarest with

the murder of Ronald Hyams. The Jefferson County District Court appointed a state

public defender as Mr. Demarest’s counsel. The public defender represented Mr.

Demarest until June 29, 1981, when Mr. Demarest retained William A. Cohan, who

served as his defense attorney throughout the trial.

       The Jefferson County District Court conducted Mr. Demarest’s trial in October

1981. The prosecution contended that the following events occurred on the morning of

February 9, 1981: Mr. Demarest struck Mr. Hyams’s head from behind and bludgeoned

his face; Mr. Hyams struggled and scratched Mr. Demarest’s hands and face; Mr.

Demarest eventually managed to subdue Mr. Hyams; and, after Mr. Hyams had passed

out, Mr. Demarest deliberated for ten to fifteen minutes and then killed Mr. Hyams by

stabbing and strangling him. Next, according to the prosecution’s theory, Mr. Demarest

drove to the dentist’s office to establish an alibi. Mr. Demarest’s apparent shock upon

discovering Mr. Hyams’s body, the prosecution suggested, was a contrived reaction

intended to divert suspicion.

       At trial, the district attorney offered scientific and forensic evidence to support this

theory. Dick Hopkins, a detective with the Arapaho County Sheriff’s Department whom

the court allowed to testify as an expert in blood-spatter analysis, testified that the pattern


                                               6
of blood stains at the murder scene indicated that Mr. Hyams was murdered by a tall,

strong right-handed man. Detective Hopkins also testified that the scratches on Mr.

Demarest’s hands appeared to come from fingernails and that the blood stains at the

murder scene indicated that about ten to fifteen minutes had elapsed between the initial

blows to Mr. Hyams’s head and the strangulation and stabbing.

       Nevertheless some of the prosecution’s own witnesses revealed flaws in the state’s

theory. A hair and fiber expert testified that facial hair discovered underneath Mr.

Hyams’s fingernails could not have come from Mr. Demarest. A blood expert testified

that there was no evidence that blood had been transferred between Mr. Hyams and Mr.

Demarest.

       The district attorney also introduced testimony about the scratches on Mr.

Demarest’s hands and face. A workman and a neighbor who observed Mr. Demarest as

he waited by the gravel driveway for emergency personnel to arrive after calling the

sheriff’s department both testified that they did not observe Mr. Demarest hitting his

hands on the gravel. Mark Davidson, a volunteer fireman who spoke to Mr. Demarest

while he waited outside the house, similarly stated that he did not notice Mr. Demarest

hitting his hands on the gravel and would have remembered seeing it. Carol Held, the

housemate of Mr. Demarest and Mr. Hyams, testified that when she met Mr. Demarest at

the local medical center on the afternoon of February 9, she noticed that his right hand

was swollen and there was a small amount of blood on his cuticles. She added that Mr.


                                             7
Demarest told her that he had scratched his hands by hitting rocks. Finally, Eileen

Bausch, a receptionist at Mr. Hyams’s dentist’s office, testified that she did not see Mr.

Demarest’s hands when he entered the office. The district attorney invoked Ms. Bausch’s

testimony in arguing that Mr. Demarest’s hands were already scratched--from the struggle

with Mr. Hyams--when he entered the dentist’s office and that he concealed his hands

from Ms. Bausch so that he could concoct the story about pounding his fists on the gravel

when he later returned home.

       The prosecution also offered testimony regarding a damp washcloth found in a

shower near Mr. Hyams’s bedroom and testimony indicating that Mr. Demarest had

changed shirts on the morning of the murder. According to Detective Hopkins, the

washcloth appeared to contain traces of blood. The prosecution argued that an intruder

would not have showered after killing Mr. Hyams and that, as a result, the damp

washcloth constituted additional evidence that Mr. Demarest was the murderer. As to Mr.

Demarest changing shirts on the morning of the murder, the prosecution argued that the

explanation offered by Mr. Demarest during questioning by sheriff’s deputies--that he had

changed from a flannel shirt to a white shirt because he had a business meeting and

thought that the white shirt looked better--was not credible. According to the

prosecution, the real reason that Mr. Demarest changed shirts was that, after the fatal

struggle with Mr. Hyams, Mr. Demarest’s shirt was covered with blood.




                                              8
       Finally, the prosecution pointed to several inconsistencies in Mr. Demarest’s

statements to the sheriff’s deputies. It noted that Mr. Demarest had given conflicting

answers concerning where he drove after leaving the dentist’s office and whether he knew

the identity of Mr. Hyams’s realtor. The district attorney suggested that these

inconsistencies indicated that Mr. Demarest had fabricated the entire account of his

activities on the morning of February 9, 1981, in order to conceal the fact that he had

murdered Mr. Hyams.

       As to a possible motive for the murder, the prosecution offered several

explanations. At one point, it suggested that Mr. Demarest may have stolen some of Mr.

Hyams’s jewelry and then hidden it in the house where jewelry was later discovered. The

prosecution also suggested that Mr. Demarest may have been jealous of Mr. Hyams’s

business success or upset because Mr. Hyams was planning to move to Boulder.

However, the prosecution offered no evidence that Mr. Demarest was angry with Mr.

Hyams.

       On behalf of Mr. Demarest, Mr. Cohan formulated a defense based on the

contention that Mr. Hyams had been murdered by Margery Sheppard, a woman whom

Mr. Hyams had rejected as a business partner. Mr. Cohan’s strategy was to call Ms.

Sheppard as a witness at trial, question her about the murder, and then argue to the jury

that she was the murderer. Apparently, despite discovering no evidence to support this

theory, Mr. Cohan remained committed to it and did very little to prepare for trial. He


                                             9
interviewed neither the prosecution’s expert witnesses nor Volunteer Fireman Davidson

and Ms. Bausch, two important witnesses with regard to the scratches on Mr. Demarest’s

hands. Additionally, Mr. Cohan did not listen to the tapes of the deputies’ interrogations

of Mr. Demarest and never sought to obtain the records of Mr. Demarest’s psychiatric

treatment immediately after the murder.

       At trial, Mr. Cohan was unable to pursue the theory that Ms. Sheppard was the

murderer. After learning of Mr. Cohan’s plan to call her as a witness, Ms. Sheppard

notified the judge that she would invoke her Fifth Amendment right not to testify. The

judge then applied the Colorado law of privilege and ruled that Mr. Cohan would not be

allowed to call Ms. Sheppard.

       Accordingly, Mr. Cohan called no witnesses in Mr. Demarest’s defense. During

closing argument, he speculated that Mr. Hyams had been murdered by a person involved

with drugs or by a spurned woman, but he was unable to point to any evidence supporting

these contentions. Evidence introduced in post-conviction proceedings revealed that Mr.

Cohan had never tried a felony case in state court and that his only criminal trial

experience consisted of four or five federal misdemeanor cases involving the tax laws.

Additionally, as his only investigator Mr. Cohan had hired a radio disc jockey with no

relevant experience in criminal matters.

       On October 27, 1981, the jury convicted Mr. Demarest of the first-degree murder

of Mr. Hyams. In December 1981, the court sentenced Mr. Demarest to life


                                             10
imprisonment. Mr. Demarest appealed, and the Colorado Court of Appeals affirmed his

conviction and sentence in May 1984. See 

(citing State

v. Demarest, No. 82 CA 122 (Colo. Ct. App. 1984)). The Supreme Court of Colorado

denied certiorari. See 

v. Demarest, No. 84 SC 295 (Colo. 1984)).

       In June 1985, Mr. Demarest filed a motion in the Jefferson County District Court

for post-conviction relief pursuant to Rule 35(c) of the Colorado Rules of Criminal

Procedure in which he argued that he had received ineffective assistance of counsel at

trial. He was represented in the Rule 35(c) proceeding by a Deputy State Public

Defender. The court conducted an evidentiary hearing on the motion, and Mr.

Demarest’s counsel called three witnesses: Mr. Cohan, Charles Hoppin (an attorney), and

Mr. Demarest. Mr. Cohan acknowledged that he committed a number of significant

errors in representing Mr. Demarest at trial, including: failing to hire experienced co-

counsel, failing to effectively argue for the suppression of Mr. Demarest’s statements to

law enforcement officers on the grounds that they were not voluntarily made, failing to

interview the state’s witnesses before trial, failing to effectively cross-examine the state’s

blood-spatter expert, failing to consult his own blood-spatter expert, and failing to raise

certain issues in a motion for a new trial. Mr. Hoppin testified that Mr. Cohan’s

representation of Mr. Demarest fell below what should be expected of a reasonably

competent defense attorney. He cited Mr. Cohan’s lack of experience in criminal trials,

his failure to retain co-counsel, his failure to effectively argue for suppression of Mr.


                                              11
Demarest’s statements to law enforcement agents, his failure to challenge the state’s

blood-spatter expert, and his failure to hire an expert of his own. Mr. Hoppin opined that

there was a reasonable probability that Mr. Cohan’s deficient performance affected the

outcome of the trial. In his testimony at the Rule 35(c) hearing in the state court, Mr.

Demarest described his dissatisfaction with Mr. Cohan’s representation and discussed his

mental state during the interrogations by the deputy sheriffs. See Rec. vol. V, State v.

Demarest, No 81-CR 259, vol. 3 (Tr. of Evidentiary Hr’g of Dec. 2, 1985).

       After considering this evidence, the district court issued a written ruling denying

Mr. Demarest’s Rule 35(c) motion. Mr. Demarest appealed, the Colorado Court of

Appeals affirmed the district court’s decision, see 

at 302-303 (Unpublished Op.

filed Apr. 7, 1988), and the Colorado Supreme Court denied certiorari, see 

(Order filed Dec. 19, 1988).

       In February 1989, Mr. Demarest filed a second Rule 35(c) motion in the Jefferson

County District Court. The district court denied Mr. Demarest’s second motion, see 

(Order filed Mar. 8, 1989); the Colorado Court of Appeals affirmed, see State v.

Demarest, 

(Colo. Ct. App. 1990); and the Colorado Supreme Court denied

certiorari, see 

(citing Colorado v. Demarest, No. 90 SC

439 (Order filed Nov. 19, 1990)).1


       1
              In this second motion, Mr. Demarest contended that: (1) he did not receive
a constitutionally adequate competency hearing prior to trial; (2) exculpatory evidence
was improperly excluded at trial; (3) on direct appeal of his conviction, the Colorado

                                             12
       In May 1991, Mr. Demarest filed in the United States District Court for the District

Court of Colorado the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. The federal petition combined the allegations of his first state post-conviction

motion with many of the allegations of his second motion. In particular, Mr. Demarest

alleged that: (1) he received ineffective assistance of counsel in violation of the Sixth and

Fourteenth Amendments; (2) the Colorado Court of Appeals relied on matters not in the

record in deciding his direct criminal appeal, thereby violating his Fifth and Fourteenth

Amendment rights; (3) the Jefferson County District Court failed to hold an adequate

hearing regarding his competency to stand trial, thus violating the Fifth and Fourteenth

Amendments; (4) the Colorado Court of Appeals violated his Fifth and Fourteenth

Amendment rights by reviewing the denial of the post-conviction motions without the

complete record and without briefing or argument; (5) the Jefferson County District Court

violated his Fifth and Fourteenth Amendment rights by refusing to consider the

voluntariness of his statements to deputy sheriffs; and (6) the Colorado Court of Appeals

violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to remand his case

for a new trial in light of a new decision.




Court of Appeals improperly failed to apply recent law in violation of his constitutional
rights by deciding the case without the full record; (4) cases decided during his direct
appeal entitled him to a new trial; and (5) the prosecutor introduced unduly prejudicial
evidence.

                                              13
       The federal district court assigned the case to a magistrate judge. Upon review of

the record of the state court proceedings, the magistrate judge issued a recommendation

concluding that the petition should be granted because Mr. Demarest had received

ineffective assistance of counsel at the state murder trial in violation of the Sixth

Amendment. A federal district court judge then reviewed this recommendation and

remanded the case to the magistrate judge for further proceedings regarding the issue of

whether Mr. Cohan’s acts and omissions prejudiced Mr. Demarest, “i.e., whether, but for

[Mr.] Cohan’s errors, there was a reasonable possibility that the outcome of Demarest’s

case would have been different.” 

.

       In October 1994, the magistrate judge held an evidentiary hearing. In support of

his ineffective assistance of counsel claim, Mr. Demarest called several witnesses who

had not testified in the state court post-conviction proceedings. Dr. Richard Cohen, a

colo-rectal surgeon, testified that he had performed hemorrhoid surgery on Mr. Demarest

shortly before trial and had prescribed narcotics and tranquilizers for him. A cellmate of

Mr. Demarest’s testified that he was in severe pain and took a great deal of medication

during the period of the trial. Dr. Kathy Vedeal, a toxicologist, testified that the

prescription drugs that Mr. Demarest was taking at the time of trial could have caused

impaired mental ability, mental confusion, and decreased alertness.

       Mr. Demarest also introduced evidence at the hearing before the magistrate judge

challenging the blood-spatter evidence offered by the prosecution at trial. Dr. Donald


                                              14
Kennedy, a fluid dynamics expert, testified that there was no scientific basis for the

inferences that Detective Hopkins drew from the pattern of blood stains at the murder

scene.

         Mr. Demarest then introduced testimony from Eileen Bausch and Mark Davidson

regarding the scratches on Mr. Demarest’s hands. Ms. Bausch testified that she must

have seen Mr. Demarest’s hands at the dentist’s office. She added that during her

testimony at Mr. Demarest’s trial in Jefferson County in 1981, she was nervous and her

memory was cloudy. Ms. Bausch said because she misunderstood the prosecutor’s

question at trial, she had incorrectly stated that she had not seen Mr. Demarest’s hands.

She added that if Mr. Cohan had interviewed her prior to trial, she would have stated

clearly in her trial testimony that there were no scratches on Mr. Demarest’s hands and

face when he came into the dentist’s office.

         Similarly, Mark Davidson, the volunteer fireman who had spoken to Mr. Demarest

in Mr. Demarest’s front yard on the day of the murder, testified at the evidentiary hearing

that he had observed Mr. Demarest pounding his hands into the gravel. Like Ms. Bausch,

Mr. Davidson said that if Mr. Cohan had interviewed him prior to trial, he would have

testified at trial that Mr. Demarest had pounded his fists into the gravel.

         Mr. Demarest also presented testimony from Dr. William Rehg, one of the

psychiatrists who treated him after the murder. Dr. Rehg stated that, in the days after the

murder, Mr. Demarest suffered from adult situational reaction syndrome in response to


                                               15
severe, acute stress and was treated with several medications. Finally, Mr. Demarest

called Lee Foreman, a legal expert who testified that Mr. Cohan’s representation was

constitutionally deficient and that, if Mr. Cohan’s mistakes had not occurred, the result of

Mr. Cohan’s trial probably would have been different. Mr. Foreman focused on Mr.

Cohan’s failure to argue for the suppression of Mr. Demarest’s statements to the police,

his failure to present medical and psychiatric evidence to the jury to explain Mr.

Demarest’s emotional reactions, his failure to challenge the state’s blood-spatter

evidence, and his failure to interview witnesses before trial.

       After the evidentiary hearing, the magistrate judge issued a second

recommendation concluding that Mr. Demarest had been deprived of his right to effective

assistance of counsel and that his petition for a writ of habeas corpus should be granted.

The federal district court agreed with the magistrate judge’s recommendation. The court

first concluded that in pursing the theory that Ms. Sheppard was the real murderer,

seeking to establish this fact by questioning her at trial, failing to interview the state’s

witnesses, and failing to conduct any investigation of his own, Mr. Cohan’s

representation of Mr. Demarest at trial “‘fell below an objective standard of

reasonableness.’” Demarest, 905 F. Supp at 1446-50 (quoting Strickland v. Washington,

, 687 (1984)). The district court then concluded that “[Mr.] Cohan’s failure

to investigate the State’s case against [Mr.] Demarest, consider alternative defense

theories, interview the Prosecution’s witnesses, and present the jury with medical


                                               16
evidence relating to [Mr.] Demarest’s psychological state in the days following [Mr.]

Hyams’ murder materially prejudiced [Mr.] Demarest.” 

“Absent [Mr.]

Cohan’s failings,” the court continued, “there is a reasonable probability that the outcome

of [Mr.] Demarest’s trial would have been different.” 

Accordingly, the court

granted Mr. Demarest’s petition for a writ of habeas corpus. See 

                                   II. DISCUSSION

         A. Application of the Antiterrorism and Effective Death Penalty Act

       As a preliminary matter, we must decide what version of the habeas corpus statutes

to apply. Sections 101-06 of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), signed into law on April 24,

1996, amend §§ 2244 and 2253-55 of chapter 153 of Title 28 of the United States Code

(federal statutes concerning habeas corpus proceedings). The state argues that this court

should apply the AEDPA to Mr. Demarest’s habeas petition. Mr. Demarest responds that

because his habeas petition was filed in the district court in 1991, well before the AEDPA

was enacted, application of its provisions to this case would afford the statutory

amendments an improper retroactive effect.

       The circuits have reached contrasting conclusions regarding the applicability of

the AEDPA to cases filed before its effective date. In Edens v. Hannigan, 

,

1112 n.1 (10th Cir. 1996), this circuit concluded that the AEDPA did not apply to a non-


                                             17
capital case in which the initial habeas petition was filed before April 24, 1996. See also

Boria v. Keane, 

, 38 (2d Cir. 1997) (per curiam) (concluding that the AEDPA

does not apply to habeas petitions filed before April 24, 1996). In Lindh v. Murphy, 

(7th Cir. 1996), rev’d, 

(1997), the Seventh Circuit disagreed,

holding that the AEDPA should be applied to all pending cases.

       The Supreme Court granted certiorari in Lindh and resolved this conflict. 

. The Court noted that, in contrast to the provisions concerning non-capital

cases, Congress included a section in the AEDPA regarding capital cases that stated that

it applied “‘to cases pending on or after the date of enactment of this Act.” 

(quoting AEDPA § 107(c)). Reading the AEDPA as a whole, the Court concluded that

the Act “reveals Congress’s intent to apply the amendments to chapter 153 [regarding the

habeas corpus statutes for non-capital cases] only to such cases as were filed after the

statute’s enactment.” Id at 2063.2 As a result, the Court held that “the new provisions of

chapter 153 generally apply only to cases filed after the [AEDPA] became effective.” 

       Mr. Demarest’s habeas petition was filed in the district court in 1991, well before

the AEDPA’s April 24, 1996, effective date. Accordingly, we conclude that the AEDPA

does not apply to these proceedings.


       2
             The Court did note that Congress did provide that a few specific sections of
the AEDPA were applicable to pending non-capital cases. See 

.
None of those specific provisions was at issue in Lindh or in the instant case.

                                             18
                             B. Exhaustion of State Remedies

       Under the doctrine of exhaustion, a state prisoner must generally exhaust available

state court remedies before filing a habeas corpus action in federal court. See Picard v.

Connor, 

, 275 (1971); Hernandez v. Starbuck, 

, 1092-93 (10th

Cir. 1995), cert. denied, 

(1996). At the time Mr. Demarest filed his

habeas petition in the federal district court, the doctrine was codified at 28 U.S.C. §

2254(b), which provided:

:             An application for a writ of habeas corpus in behalf of a
              person in custody pursuant to the judgment of a State court
              shall not be granted unless it appears that the applicant has
              exhausted the remedies available in the courts of the State, or
              that there is either an absence of a State corrective process or
              the existence of circumstances rendering such process
              ineffective to protect the rights of the prisoner.

The doctrine reflects the policies of comity and federalism between the state and federal

governments, a recognition that “‘it would be unseemly in our dual system of government

for a federal district court to upset a state court conviction without an opportunity to the

state courts to correct a constitutional violation.’” 

(quoting Darr

v. Burford, 

, 204 (1950), overruled on other grounds by Fay v. Noia, 372

U.S. 391(1963)).

       The exhaustion doctrine requires a state prisoner to “fairly present[]” his or her

claims to the state courts before a federal court will examine them. 

; see also Nichols v. Sullivan, 

, 1252 (10th Cir. 1989) (discussing fair


                                              19
presentation requirement). “Fair presentation” of a prisoner’s claim to the state courts

means that the substance of the claim must be raised there. The prisoner’s allegations and

supporting evidence must offer the state courts “a ‘fair opportunity’ to apply controlling

legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless,

, 6 (1982) (citing 

). Therefore, although a habeas

petitioner will be allowed to present “‘bits of evidence’” to a federal court that were not

presented to the state court that first considered his claim, evidence that places the claims

in a significantly different legal posture must first be presented to the state courts. Jones

v. Hess, 

, 694 (10th Cir. 1982) (quoting Nelson v. Moore, 

,

1197 (1st Cir. 1972)).

       In the instant case, the state argues that Mr. Demarest failed to exhaust his state

remedies by failing to fairly present his ineffective assistance of counsel claim to the

Colorado state courts. The state focuses on several witnesses at the federal evidentiary

hearing: (1) Eileen Bausch and Mark Davidson who stated that, if they had been

interviewed by Mr. Demarest’s attorney before his state court trial, they would have given

testimony at the trial that directly supported Mr. Demarest’s assertion that he scratched

his hands by pounding them onto the driveway after finding Mr. Hyams’s body; (2) Dr.

Donald Kennedy, who challenged the scientific basis of the evidence offered at trial by

the state’s blood-spatter expert; (3) Lee Foreman, the legal expert who testified at the

federal evidentiary hearing that Mr. Cohan should have interviewed witnesses, presented


                                              20
a blood-spatter expert like Dr. Kennedy to challenge the state’s evidence, and presented

medical and psychiatric testimony to the jury to explain Mr. Demarest’s emotional

breakdowns in the days after Mr. Hyams’s murder; and (4) Dr. Kathy Vedeal, a

toxicologist, and Dr. William Rehg, a psychiatrist, who testified as to Mr. Demarest’s

mental state during the period after Mr. Hyams’s murder. The state argues that these

witnesses offered evidence at the federal evidentiary hearing that significantly altered Mr.

Demarest’s ineffective assistance of counsel claim, placing it in a much stronger legal

posture than in the state court proceedings. Because the Colorado state courts did not

have an opportunity to consider this evidence, the state maintains, Mr. Demarest has

failed to exhaust his state remedies by failing to present his ineffective assistance of

counsel claims to the state courts.

       Mr. Demarest responds that, with regard to the testimony of Mr. Foreman and

Drs. Kennedy, Vedeal, and Rehg, the state has waived the defense of failure-to-exhaust.

He notes that the state failed to object to their testimony at the evidentiary hearing before

the magistrate judge and did not challenge their testimony in its written objections to the

magistrate judge’s findings and recommendations. As to Ms. Bausch and Mr. Davidson

(whose testimony the state did challenge in the district court proceedings for failure-to-

exhaust), Mr. Demarest contends that this evidence did not fundamentally alter his claim

that his trial counsel was ineffective in failing to interview witnesses before trial. As a




                                              21
result, he contends, the new testimony offered by these two witnesses at the federal

evidentiary hearing does not contravene the exhaustion requirement.3



                              1. The State’s Alleged Waiver

       The exhaustion requirement, although not to be lightly overlooked, is not

jurisdictional. See Granberry v. Greer, 

, 131 (1987); 

. As a result, there are circumstances in which a state may be deemed to have

waived the exhaustion defense such that a federal court may consider the merits of a

petitioner’s claims--even though those claims have not been fairly presented to the state


       3
                On appeal, Mr. Demarest also briefly argues that this court need not analyze
the evidence presented at the federal evidentiary hearing because the evidence presented
to the Jefferson County District Court in support of his motion for post-conviction relief
under Colorado Rule of Criminal Procedure 35(c) is sufficient to establish that he
received ineffective assistance of counsel pursuant to Strickland v. Washington, 

, 687 (1984). See Aple’s Br. at 21-22. We are not persuaded by this argument.
        Although the evidence presented at the state court hearing provides ample support
for the first element of the Strickland analysis, that trial counsel’s errors “fell below an
objective standard of reasonableness,” 

, there is little concrete
evidence in the state court record to establish the second Strickland element, that there is
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 

In particular, the evidence presented
by Mr. Demarest at the state court hearing does not establish what effect the interviewing
of witnesses before trial and the presentation of expert witnesses by defense counsel at
trial would have had on result of the murder case. Without evidence in the state court
record as to how witnesses would have testified differently if they had been interviewed
or as to what defense experts would have said to challenge the state’s scientific evidence,
the prejudicial effect of trial counsel’s errors is highly speculative.
        In light of the insufficiency of the state court record, we must therefore proceed
to analyze the evidence presented by Mr. Demarest at the federal evidentiary hearing and
then to determine whether he has exhausted his state court remedies.

                                            22
courts. See 

.4 In Granberry, the Supreme Court noted that

when the state answers a habeas petition, it is obligated to advise the district court

whether the petitioner has exhausted all available remedies. See 

However, in

instances in which the state has failed to raise a failure-to-exhaust defense in the district

court proceedings, the courts of appeals may “take a fresh look at the issue,” determining

“whether the interests of comity and federalism will be better served by addressing the

merits forthwith or by requiring a series of additional state and district court proceedings

before reviewing the merits of the petitioner’s claim.” 

instant case, the state has candidly conceded that its failure to object to the

testimony of Mr. Foreman and Drs. Kennedy, Vedeal, and Rehg was “an unfortunate

oversight.” See Aplt’s Opening Br. at 31. Moreover, we emphasize that, in order to

afford the district court a reasonable opportunity to fairly adjudicate the relevant issues in

the case, the defense of failure-to-exhaust should be raised as soon as reasonably possible,

a practice that the state did not follow here when it specifically objected to only the

Bausch and Davidson testimony at the federal hearing.




       4
               We note that the AEDPA amendments to 28 U.S.C. § 2254 change the
Granberry rule with regard to cases filed after April 24, 1996. Under the amended
version of § 2254(b)(3), “A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State, through
counsel, expressly waives the requirement.” 28 U.S.C. § 2254 (b)(3) (1996). In the
instant case, because Mr. Demarest filed his habeas petition in federal court in 1991, we
apply Granberry rather than the amended version of § 2254(b)(3).

                                              23
       Nevertheless, considering the comity and federalism interests at issue in this case,

we conclude for several reasons that the state’s failure to specifically object to the

testimony of Mr. Foreman and Drs. Vedeal, Rehg, and Kennedy should not be deemed a

waiver of the failure-to-exhaust defense as to these witnesses. First, unlike several of the

decisions that have found a waiver of the defense, the state here did not completely fail to

raise the issue before the district court ruled on the petition. See Hannon v. Maschner,

, 1146-47 (10th Cir. 1992) (declining to consider a failure-to-exhaust

defense when the issue was not raised until oral argument on the motion to reconsider the

order granting the writ); Stone v. Godbehere, 

, 1135 (9th Cir. 1990)

(declining to consider the defense when the state failed to raise it at any point in the

district court proceedings). Not only did the state object to the testimony of Ms. Bausch

and Mr. Davidson (on the grounds that this testimony had not been presented to the state

courts), but it also objected to the federal evidentiary hearing. See Rec. vol. I, doc. 46. In

its objection, the state contended that because Mr. Demarest had been afforded an

opportunity to develop his claims in the state court proceedings, an evidentiary hearing in

the federal district court was improper. Although the state’s objection did not refer to the

testimony of particular witnesses--a practice which would have been highly preferable if

it sought to invoke the failure-to-exhaust defense--its contention that the state court

record was sufficient to adjudicate Mr. Demarest’s claim and that new evidence should

not be taken did raise the comity and federalism concerns on which the exhaustion


                                              24
requirement is based. Accordingly, applying Granberry, we conclude that the state may

now raise the failure-to-exhaust defense as to the referenced testimony of Mr. Foreman

and Drs. Kennedy, Vedeal, and Rehg (as well as Ms. Bausch and Ms. Davidson). Cf.

Caballero v. Keane, 

, 741 (2d Cir. 1994) (rejecting argument that a habeas

petitioner waived a failure-to-exhaust argument by failing to raise it in the federal district

court proceedings because “[a]n important unresolved issue has not yet been considered

by the state courts, and a procedure especially suited to air this issue is still available.”).



            2. Fair Presentation of Mr. Demarest’s Claims to the State Courts

       Because the state did not specifically raise the defense of failure to exhaust with

regard to the testimony of Mr. Foreman and Drs. Vedeal, Rehg, and Kennedy, the district

court did not consider the impact of that testimony on the issue of whether Mr.

Demarest’s ineffective assistance of counsel claim had been fairly presented to the state

courts. However, with regard to Ms. Bausch and Mr. Davidson, the district court agreed

with Mr. Demarest that their testimony was “supplementary evidence of [Mr.] Cohan’s

failure to investigate.” 

. According to the district court,

“The testimony [Ms.] Bausch and [Mr.] Davidson gave at the evidentiary hearing does

not alter the nature of [Mr.] Demarest’s claim, nor does it significantly bolster the claim

so as to substantially influence the ultimate determination of [Mr.] Demarest’s petition for

writ of habeas corpus.” 

court found the Bausch and Davidson testimony


                                               25
analogous to the new evidence presented to the federal district court in Vasquez v.

Hillary, 

(1986), which the Supreme Court characterized as not altering the

nature of the habeas claim that had been presented to the state courts, see 

See

.

       In analyzing the parties’ arguments and the district court’s conclusions, we are

guided by this circuit’s decision in Jones v. Hess, 

(10th Cir. 1982), and by

Fourth and Fifth Circuit decisions adopting similar reasoning, see Wise v. Warden,

Maryland Penitentiary, 

(4th Cir. 1988); Dispensa v. Lynaugh, 

(5th Cir. 1987). In Jones, the habeas petitioner asserted a claim that the trial judge

was biased. In the federal court proceedings, the petitioner introduced three ex parte

letters from the allegedly biased judge to the prosecutor concerning the petitioner’s case.

The letters had not been introduced in the state court proceedings. This circuit concluded

that the judge’s ex parte letters “transformed the claim of bias and prejudice into a

significantly different and more substantial claim,” placing the claim “in a significantly

different and stronger posture than it was when the state courts considered it.” 

. The court therefore held that the petitioner’s bias claim was properly

dismissed for failure to exhaust state court remedies. See 

       The Fourth and Fifth Circuits have adopted an approach similar to Jones in

concluding that new evidence presented at a federal evidentiary hearing warranted

dismissal of a habeas claim for failure to exhaust. In Wise, the habeas petitioner alleged


                                             26
that the state had withheld exculpatory evidence that a witness who testified against him

at trial had entered into an agreement with state. See 

. At the

federal evidentiary hearing, the petitioner introduced for the first time the actual

agreement between the state and the witness. The Fourth Circuit held that the agreement

constituted new evidence that significantly altered the nature of the petitioner’s claims.

As a result, the court concluded, the petition should be dismissed for failure to exhaust.

“The state court, which has never been presented with this critical evidence, must be

given the opportunity to evaluate the claim in its new posture and to make the relevant

findings of fact to which the federal courts must in turn defer.” 

Dispensa, the habeas petitioner challenged the reliability of the

victim’s in-court identification of him as well as the procedures used by police to elicit

the victims’s pretrial, out-of-court identification. See 

, 379. At

the federal evidentiary hearing, the petitioner offered expert testimony from a

psychologist regarding the victim’s choice of words and emotional state during the in-

court identification. Additionally, in the federal hearing, the habeas petitioner described

the out-of-court identification procedures in a manner that differed significantly from the

description he had given in the state court proceedings. The Fifth Circuit held that the

habeas petition should be dismissed for failure to exhaust because the petitioner’s

changed testimony as well as the new expert testimony placed his claim in a significantly

stronger posture than when he presented the claim to the state courts. See 

                                              27
See also Joyner v. King, 

, 1320 (5th Cir. 1986) (noting that a petitioner who

presents a weak case to the state court and a strong case to the federal court fails to satisfy

the exhaustion requirement); Sampson v. Love, 

, 54-55, 58 (6th Cir. 1984)

(dismissing habeas petition for failure to exhaust when new evidence presented in the

federal hearing showed that jurors knew about petitioner’s previous sentence); Brown v.

Estelle, 

, 495 (5th Cir. 1983) (“Where a federal habeas petitioner presents

newly discovered evidence or other evidence not before the state courts such as to place

the case in a significantly different and stronger evidentiary posture than it was when the

state courts considered it, the state courts must be given an opportunity to consider the

evidence.”); cf. Williams v. Washington, 

, 677-79 (7th Cir. 1995) (concluding

that the introduction of new evidence in federal court did not contravene exhaustion

requirement because new evidence merely contained information that was available from

other sources contained in the state court record).

       In the instant case, we apply the analysis followed by Jones and similar decisions

to the new evidence offered by Mr. Demarest in the federal evidentiary hearing. As

explained below, consideration of the testimony of the new witnesses leads us to conclude

that Mr. Demarest’s ineffective assistance of counsel claim was not fairly presented to the

state courts.




                                              28
                    a. Testimony of Eileen Bausch and Mark Davidson

       In the state court hearing on his ineffective assistance of counsel claim, Mr.

Demarest offered testimony from his trial counsel acknowledging that he had failed to

adequately investigate the case and failed to interview certain witnesses. Although trial

counsel listed particular witnesses that he failed to interview, he did not mention Ms.

Bausch or Mr. Davidson.5 Moreover, at no point in the state post-conviction proceedings

did Mr. Demarest even mention the testimony of Ms. Bausch or Mr. Davidson or contend,

as he did so vigorously in the federal proceedings, that if Mr. Cohan had interviewed

them prior to trial, they would have testified in a manner that would have substantially

strengthened Mr. Demarest’s defense regarding the cause of the scratches on his hand.

       We disagree with the district court’s conclusion that “[Ms.] Bausch and [Mr.]

Davidson’s testimony [at the federal evidentiary hearing] does not significantly change

the nature of [Mr.] Demarest’s allegations.” Demarest, 905 F. Supp at 1446. Ms. Bausch

and Mr. Davidson’s testimony constituted significant evidence that Mr. Cohan’s failure to

interview them prejudiced Mr. Demarest’s defense. As the district court itself observed,

Ms. Bausch testified at the federal hearing that had Mr. Cohan interviewed her before



       5
               Mr. Cohan listed the following witnesses that he failed to interview: Detective
Hopkins (the state’s blood-spatter expert), the state’s pathologist, the medical personnel who
treated Mr. Demarest at St. Anthony’s hospital, the personnel who drove Mr. Demarest to the
hospital on the day of the murder and after he collapsed during the interrogation on February 12,
1981, and the neighbor who waited with Mr. Demarest for emergency personnel to arrive. See
Rec. vol. V, State v. Demarest, No. CR. 81-259, vol 3, at 17-19, 27 (Tr. of Evidentiary Hr’g of
Dec. 2, 1985).

                                               29
trial, he could have elicited from her testimony that she observed Mr. Demarest’s hands at

the dental office on the morning of the murder but did not remember seeing scratches on

his hands. In the words of Mr. Demarest’s legal expert in the federal proceedings, “the

significance of [Ms. Bausch’s testimony] . . . can’t be over dramatized.” Rec. vol. III, at

216 (Tr. of Evidentiary Hr’g of Oct. 17, 1994). Similarly, Mr. Davidson stated that if Mr.

Cohan had interviewed him before trial, he would have testified that he remembered

observing Mr. Demarest pounding his hands on the gravel driveway after discovering Mr.

Hyams’s body. The testimony of both these witnesses supports the contention that more

thorough pretrial preparation by Mr. Cohan would have uncovered evidence that very

significantly strengthened Mr. Demarest’s defense. However, because this testimony was

not presented in the state post-conviction proceedings, the state courts were deprived of

the opportunity to assess the prejudicial effect of Mr. Cohan’s failure to interview Ms.

Bausch and Mr. Davidson.

       We also disagree with the district court’s conclusion that “the introduction of the

additional testimony is similar to the circumstances presented in Vasquez.” 

. In Vasquez, in response to a request from a federal district court

for evidence clarifying and supplementing the state court record, the petitioner submitted

additional affidavits and a computer analysis to support the allegation that the state had

improperly excluded African-Americans from a grand jury. See 

. The Supreme Court held that the new evidence did not circumvent the


                                             30
exhaustion requirement. As to the new affidavits, the Court noted that they were

introduced to support allegations that were already supported by evidence in the state

court record. As to the computer analysis, the Court said that it added nothing that was

not intrinsic to any grand jury discrimination claim. See 

       Unlike the new evidence in Vasquez, the new evidence obtained from Ms. Bausch

and Mr. Davidson does not merely supplement evidence in the state court record; it is

more like a 180 degree turn. No evidence in the state court record indicates that a

pretrial interview of these two witnesses by Mr. Demarest’s counsel would have produced

credible testimony so highly favorable to his defense. Vasquez fails to support the district

court’s conclusion that Ms. Bausch and Mr. Davidson’s new testimony did not

significantly change the nature of Mr. Demarest’s allegations.



                                 b. Blood-spatter Evidence

       We reach the same conclusion as to the new testimony offered by Mr. Demarest

regarding the state’s blood-spatter evidence. As noted above, in the state court

proceedings, Mr. Demarest did allege that Mr. Cohan had failed to challenge the

qualifications of Dr. Herbert MacDonell, the state’s first designated blood-spatter expert.

Mr. Demarest also alleged that Mr. Cohan had failed to effectively cross-examine

Detective Dick Hopkins, the witness who actually testified at the trial regarding the

blood-spatter evidence. Additionally, Charles Hoppin, the legal expert who testified at


                                             31
the state evidentiary hearing opined that Mr. Demarest’s trial attorney should have

interviewed the state’s expert witnesses and should have consulted with an independent

blood-spatter expert in order to properly evaluate and respond to the state’s evidence. See

Rec. vol. V, State v. Demarest, No. CR 81-259, vol. 3 at 92-98 (Tr. of Evidentiary Hr’g of

Dec. 2, 1985).

       However it was not until the federal evidentiary hearing that Mr. Demarest offered

evidence from Dr. Donald Kennedy challenging the scientific basis of the state’s expert

testimony. Dr. Kennedy began his testimony at the federal hearing by examining the

manual on blood-spatter evidence written by Dr. MacDonell, the witness initially

designated as the state’s expert. Detective Hopkins, the state witness who actually

testified at trial regarding the blood-spatter evidence, attended Dr. MacDonell’s course

and relied on his manual in reaching his conclusions. According to Dr. Kennedy’s

testimony, the manual indicated that Dr. MacDonell lacked a basic understanding of the

fluid dynamics of blood droplets.

       Dr. Kennedy proceeded to explain numerous specific errors in Dr. MacDonell’s

manual. He criticized the experiments that it described, characterizing them as “poor high

school science.” Rec. vol. II at 46 (Tr. of Evidentiary Hr’g of Oct. 17, 1994). He

explained that Dr. MacDonell did not understand basic principles of fluid dynamics such

as viscosity and surface tension. He described several measurements pertaining to the




                                            32
fluid dynamics of blood droplets--the bond number, the Weber number, and the Reynolds

number--and said that Dr. MacDonell lacked a basic understanding of these concepts.

       Then, Dr. Kennedy offered explanations of the ways in which Detective Hopkins’s

trial testimony reflected Dr. MacDonell’s limited scientific understanding. He disagreed

with Detective Hopkins’s statement that one could determine the type of weapon used by

applying the principles of fluid dynamics to the blood droplets found at a crime scene. He

also questioned Detective Hopkins’s opinions as to the sequence of events leading up to

the murder, as to the type of weapon used, and as to the physical characteristics of the

murderer (i.e. that the murderer was a strong, right-handed man), stating that fluid

dynamics did not allow one to draw definitive conclusions about these matters.

       Essentially, Dr. Kennedy’s testimony regarding the state’s blood-spatter evidence

was that the “physics are wrong, so the science is wrong, so the conclusions are wrong.”

See Rec. vol. II at 64 (Tr. of Evidentiary Hr’g of Oct. 17, 1994). No evidence of this

kind was presented in the state court proceedings. Thus, it was not until after Dr.

Kennedy’s testimony in the federal court proceedings that Mr. Demarest could point to

evidence that an adequate pretrial investigation by Mr. Cohan would have uncovered

strong scientific evidence that could be used to challenge the state’s witnesses.

       Mr. Demarest’s new expert testimony from Dr. Kennedy resembles the new expert

testimony offered by the petitioner in the Fifth Circuit’s decision in 

. As in that case, the new evidence offered by Mr. Demarest through Dr. Kennedy


                                             33
and Mr. Foreman transformed his claim from one involving only general allegations of

failing to investigate and cross-examine and only a minimal showing of prejudice into one

involving a concrete reference to a qualified expert who could have been produced at trial

to rebut the scientific basis of the state’s case. We therefore conclude that Mr.

Demarest’s allegations regarding his trial counsel’s failure to challenge the state’s blood-

spatter evidence were not fairly presented to the state courts.



                          c. Medical and Psychiatric Evidence

       We reach the same conclusion as to the medical and psychiatric evidence that Mr.

Demarest produced at the federal evidentiary hearing to demonstrate how his mental state

during the period shortly after Mr. Hyams’s murder could have been explained to the jury.

At the federal hearing, Mr. Demarest presented three witnesses on this subject who did

not testify in the state court proceedings: (1) Dr. Kathy Vedeal, a toxicologist, who

testified about the effects of medication taken by Mr. Demarest after the murder and

stated that the medication could have blurred his thinking; (2) Dr. William Rehg, a

psychiatrist, who testified about Mr. Demarest’s mental state when Mr. Demarest was

questioned by law enforcement officers and explained that Mr. Demarest’s highly

emotional state could have been caused by feelings of shock and grief over the death of a

friend; and (3) Lee Foreman, Mr. Demarest’s legal expert, who testified that Mr.

Demarest’s trial counsel should have introduced medical and psychological evidence such


                                             34
as that given by Drs. Vedeal and Rehg to explain why Mr. Demarest had difficultly giving

consistent and coherent answers when he was interrogated. According to Mr. Foreman, a

competent defense attorney could have used this evidence to rebut the prosecution’s

contention that Mr. Demarest’s confused answers and emotional reactions reflected

consciousness of guilt and to establish that Mr. Demarest had acted as would someone

who had recently learned that a friend had been murdered. See Rec. vol. III at 269-272

(Tr. of Evidentiary Hr’g of October 18, 1994).

       Like the new testimony of Ms. Bausch and Mr. Davidson and the new blood-

spatter evidence, Mr. Demarest did not present this contention and supporting evidence to

the state courts in the post-conviction proceedings. In the state proceedings, Mr.

Demarest alleged that his trial counsel had failed to discover medical records that could

have been used to challenge the voluntariness of his statements to the police, thereby

providing the basis for a motion to suppress. However, Mr. Demarest never alleged in the

state court proceedings that medical and psychiatric evidence could be used to explain his

emotional state to the jury in a manner that supported his innocence. Thus, the testimony

given by Drs. Vedeal and Rehg and by Mr. Foreman at the evidentiary hearing

significantly strengthened Mr. Demarest’s contention that his trial counsel was ineffective

in failing to present medical and psychiatric evidence to explain his emotional reactions to

the jury. Thus, this aspect of Mr. Demarest’s ineffective assistance of counsel claim was

also not fairly presented to the state courts.


                                                 35
       In summary, like the new evidence offered in the federal proceedings in Jones,

Wise, Dispensa, and similar cases, the new evidence submitted to the district court by Mr.

Demarest transformed his ineffective assistance of counsel claim into one that was

“significantly different and more substantial.” See 

. In the state

court proceedings, Mr. Demarest made general allegations concerning his trial counsel’s

failure to investigate the case and interview witnesses. However, in the federal

proceedings, those general allegations were supported by testimony of several witnesses

concerning the prejudicial effect of his trial counsel’s deficient performance. Therefore,

upon considering the new testimony of Ms. Bausch, Mr. Davidson and Mr. Foreman, and

Drs. Kennedy, Vedeal, and Rehg, we conclude that Mr. Demarest has failed to exhaust his

state court remedies regarding his ineffective assistance of counsel claim



                                     C. Procedural Bar

       Generally, when a habeas petitioner has failed to exhaust his state court remedies,

a federal court should dismiss the petition without prejudice so that those remedies may

be pursued. See 

(affirming dismissal of habeas claim without

prejudice for failure to exhaust); see also 

(reversing the district

court’s grant of a writ and remanding the case with instructions to dismiss without

prejudice). However, in considering unexhausted claims, federal courts should consider

whether, upon dismissal of the claims, the petitioner would then be able to raise them in


                                             36
the state courts. “[I]f the court to which Petitioner must present his claims in order to

meet the exhaustion requirement would now find those claims procedurally barred, there

is a procedural default for the purposes of federal habeas review.” Dulin v. Cook, 

, 759 (10th Cir. 1992) (citing Coleman v. Thompson, 

, 735 n.1

(1991)).

       Here, Mr. Demarest filed his ineffective assistance of counsel claim in the state

courts pursuant to Rule 35 of the Colorado Rules of Criminal Procedure. Rule 35

authorizes the state court to vacate a conviction that was imposed in violation of the laws

or constitutions of the United States or Colorado. See Col. R. Crim. P. 35(c)(2)(I). Rule

35(c)(3) provides in part that “[t]he court need not entertain a second motion or

successive motions for similar relief based upon the same or similar allegations on behalf

of the same prisoner.” Col. R. Crim. P. 35(c)(3). Accordingly, in order to determine

whether Mr. Demarest would now be procedurally barred from bringing an ineffective

assistance of counsel claim in state court based on the new evidence presented at the

federal hearing, we must consider how the Colorado courts have interpreted Rule

35(c)(3)’s prohibition of second and successive motions.

       The Colorado Supreme Court has held that “‘[w]here a post-conviction application

is filed, it should contain all factual and legal contentions of which the applicant knew at

that time of filing, and failure to do so will, unless special circumstances exist, ordinarily

result in a second application containing such grounds being summarily denied.’”


                                              37
Turman v. Buckallew, 

, 780 (Colo. 1989) (en banc) (emphasis added)

(quoting People v. Scheer, 

, 835 (Colo. 1974)) (emphasis added); see also

People v. Hubbard, 

, 948 (Colo. 1974) (en banc) (“If a second or successive

motion is filed, it may be summarily dismissed without a hearing unless the trial judge

finds that the failure to include newly asserted grounds for relief in the first Crim. P.

35(b) motion is excusable.”). Several Colorado decisions describe the kind of “special

circumstances” that warrant the consideration of successive Rule 35 motions.

       The lack of counsel in post-conviction proceedings is one such special

circumstance. The Colorado Supreme Court has held that “in the absence of a knowing

and intelligent waiver, the assistance of counsel is essential in post-conviction

proceedings, unless the asserted claim for relief is wholly unfounded.” 

(citing Haines v. People, 

(Colo. 1969) and Kostol v. People,

(Colo. 1968)). Given the convicted defendant’s right to post-conviction

counsel, the Colorado Supreme Court reasoned, it is possible for a full review of the

defendant’s claims to be accomplished in a single post-conviction proceeding and “no

justification exists for condoning successive and often repetitive motions for post-

conviction relief.” 

when a defendant represents himself pro se, he or she

cannot reasonably be expected to raise all of his or her claims in a single proceeding. See

law recognizes that as a practical matter without the assistance of counsel,

a convicted defendant would be hard-pressed to assemble into a single Crim. P. 35(b)


                                              38
motion all of the legal arguments which might result in post-conviction relief.”). As a

result, Colorado courts have allowed defendants to file successive petitions after the

denial of earlier petitions filed pro se. See, e.g., People v. Naranjo, 

, 409

(Colo. Ct. App. 1987) (“[S]ince [the] defendant did not have legal representation during

the course of his first Crim. P. 35(c) proceeding, he is not necessarily precluded from

relying upon other grounds for relief in his present motion.”).

       As the state here acknowledges, see Aplt’s Opening Br. at 30 n.7, another special

circumstance that may warrant the consideration of a successive Rule 35 motion is the

ineffective assistance of counsel in post-conviction proceedings. The Colorado Court of

Appeals has held that the right to counsel in post-conviction proceedings includes the

right to effective assistance of counsel under the standards established by the United

States Supreme Court in 

. See People v. Hickey, 

, 379 (Colo. Ct. App. 1995). As a result, the Court of Appeals concluded, the failure

to provide effective assistance of counsel in a post-conviction proceeding is tantamount to

failing to provide counsel at all. See 

suggests that, like the complete

absence of counsel in a post-conviction proceeding, ineffective assistance of counsel in

such a proceeding may constitute a special circumstance that allows allow the court to

consider a second or successive Colo. Crim. P. 35(c) motion. 

People v.

Goldman, 

, 374-75 (Colo. Ct. App. 1996) (refusing to follow procedure

adopted in Hickey--remanding Rule 35(c) proceeding to the trial court to consider claim


                                             39
alleging ineffective assistance of counsel in the Rule 35(c) proceeding--because this claim

was not first raised in the trial court).

       In addition to the complete lack of counsel and ineffective assistance of counsel,

the Colorado courts have suggested several other circumstances that may justify the

consideration of successive post-conviction motions. For example, the announcement of

a new legal principle after the first motion has been filed may warrant consideration of a

successive motion. See People v. Allen, 

, 101 (Colo. Ct. App. 1992)

(“Because the defendant did not know of the changed double jeopardy legal standard

when he filed his first Crim. P. 35(c) motion . . . his application for relief is not barred. . .

.”), rev’d on other grounds, 

(Colo. 1994). The discovery of new evidence

may also constitute a special circumstance justifying consideration of a successive

motion. See 

.

       In the instant case, Mr. Demarest has offered no explanation as to why his counsel

in the Rule 35(c) proceeding in state court did not present the significant new evidence

that was subsequently produced at the federal hearing. Accordingly, we are unable to

determine from the record before us whether Mr. Demarest’s failure to present this

evidence in the state court proceedings was caused by the kind of “special

circumstances,” see 

; 

, that would allow

the filing of a second or successive post-conviction motion under Col. R. Crim. P. 35.

(e.g., ineffective assistance of post-conviction counsel, the discovery of new evidence, or


                                               40
a change in the law). We note that the state has requested that we remand the case to the

district court for a determination of whether Mr. Demarest’s ineffective assistance of

counsel claim based on the new evidence would be procedurally barred under Colorado

law. In light of the insufficient record before us, we agree that remand is warranted to

address that issue.6

       In the event that the district court finds that Mr. Demarest’s ineffective assistance

of counsel claim (based on the new evidence discussed above) would not be procedurally

barred under Colorado law, it should dismiss the claim without prejudice so that it may

now be adjudicated in the Colorado courts. Alternatively, in the event that the district

court finds that Mr. Demarest’s claim would be procedurally barred under Colorado law,


       6
               In his appellate brief, Mr. Demarest also argues that Colorado’s procedural
rules should not bar federal habeas relief here because they have not been applied
regularly and consistently by the state courts. See Aple’s Br. at 36-37. In order to
preclude federal habeas review, a state’s procedural bar rules must be both “independent”
and “adequate.” See Steele v. Young, 

, 1521-22 (10th Cir. 1993). A
procedural bar rule is “independent” if it is based exclusively on state law. See 

Although it is often difficult to determine whether a procedural bar rule is
“adequate,” we have concluded that “state procedural bar rules [are] inadequate to
preclude federal review where the state court has not applied the bar ‘strictly or regularly’
to the type of claim at issue.” 

(citing Gutierrez v. Moriarty, 

,
1469-71 (10th Cir. 1991)).
               Here, because the record does not indicate why Mr. Demarest did not
present the testimony of Eileen Bausch, Mr. Davidson, and Drs. Vedeal, Kennedy, and
Rehg in the initial state post-conviction proceedings, it is not clear whether Colorado’s
procedural bar rules will apply to this case and, if they do apply, what particular rule will
be triggered. Accordingly, we leave for the district court on remand the determination, if
relevant, of whether the particular Colorado procedural bar rules at issue, if any, are
sufficiently “adequate” and “independent” to preclude a successive ineffective assistance
of counsel claim based on the new evidence.

                                             41
the district court should proceed to determine the federal question of whether there was

cause for the default and actual prejudice resulting from a violation of federal law or

whether a failure to consider Mr. Demarest’s claim would result in a fundamental

miscarriage of justice. See Breechen v. Reynolds, 

, 1353 (10th Cir. 1994).



               D. Cause and Prejudice; Fundamental Miscarriage of Justice

       A federal court may proceed to the merits of a procedurally defaulted habeas claim

if the petitioner establishes either cause for the default and actual prejudice or a

fundamental miscarriage of justice if the merits of the claim are not reached. Klein v.

Neal, 

, 1400 (10th Cir. 1995); 

. The determination

of cause and prejudice and of fundamental miscarriage of justice are both matters of

federal law. See Murray v. 

, 489 (1984); 

.

       Cause for a procedural default generally involves “some objective factor external

to the defense [that] impeded counsel’s efforts to comply with the State’s procedural

rule.” 

. Cause may be established by showing that “the factual or

legal basis for a claim was not reasonably available to counsel” or that there was “‘some

interference by officials that made compliance impracticable.” 

v.

Allen, 

, 486 (1953)). However, ineffective assistance of counsel in the post-

conviction proceedings does not constitute cause under federal law. See 

(1991) (“Because [petitioner] had no [federal constitutional] right to counsel


                                              42
to pursue his appeal in state habeas, any attorney error that lead to the default of [his]

claims in state court cannot constitute cause to excuse the default in federal habeas.”).7 If

cause is established, the petitioner must then show that he suffered actual prejudice as a

result of the alleged violation of federal law. See 

; 

.

       Alternatively, a federal court may proceed to the merits of a procedurally defaulted

claim if the petitioner establishes that a failure to consider the claim would result in a

fundamental miscarriage of justice. See 

; 

. To come within this “very narrow exception,” 

, the

petitioner must supplement his habeas claim with a colorable showing of factual

innocence. See 

showing does not in itself entitle the petitioner to relief but

instead serves as a “‘gateway’” that then entitles the petitioner to consideration of the

merits of his claims. 

(quoting Herrera v. Collins, 

, 404 (1993)). In this context, factual innocence means that “it is more likely than not

that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Schlup v. Delo, 

, 327 (1995); see also 

(“[W]e think


       7
              As noted above, under Colorado law (which the district court should apply
to determine whether Mr. Demarest’s claim would now be procedurally barred),
ineffective assistance of counsel in one collateral proceeding may authorize the filing of a
second or successive proceeding. See 

. In this respect, the
Colorado law that the district court must initially apply in determining whether there is a
procedural bar differs from the federal law that must be applied if the district court finds a
procedural bar and is then required to proceed to a determination of cause and prejudice.

                                              43
that in an extraordinary case, where a constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal habeas court may grant the writ even

in the absence of a showing of cause for the procedural default.”). Factual innocence

requires a stronger showing than that necessary to establish prejudice. 

. “[T]he habeas court must make its determination concerning the petitioner’s

innocence ‘in light of all the evidence, including that alleged to have been illegally

admitted (but with due regard to any unreliability of it) and evidence tenably claimed to

have been wrongly excluded or to have become available only after the trial.’” 

Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).

       Accordingly, on remand, in the event that the district court finds that Mr.

Demarest’s ineffective assistance of counsel claim based on the new evidence discussed

above would be procedurally barred under Colorado law, it should then determine

whether Mr. Demarest has established cause for the default and prejudice resulting from a

violation of federal law or that a fundamental miscarriage of justice would result if his

claim is not considered on the merits. In that event, if Mr. Demarest establishes either

cause and prejudice or a fundamental miscarriage of justice, then the district court should

grant his habeas petition.8


       8
             We note that although the state has challenged the district court’s
conclusion that Mr. Demarest has exhausted his state court remedies, it has not
challenged the district court’s conclusion on the merits that (in light of the new evidence)

                                             44
                                    II. CONCLUSION

       As the First Circuit has written:

       The junction where federal habeas power intersects with state criminal
       processes is enswathed in a mutuality of respect between sovereigns. It is
       that principle of comity which underlies the federal courts’ unwillingness to
       adjudicate too hastily matters of fundamental federal significance arising
       out of state prosecutions. Requiring that remedies be exhausted in state
       courts is merely comity’s juridical tool, embodying the federal sovereign’s
       respect for the state courts’ capability to adjudicate federal rights.




Mr. Demarest received ineffective assistance of counsel in violation of the Sixth
Amendment. “‘[A] legal decision made at one stage of litigation, unchallenged in a
subsequent appeal when the opportunity to do so existed, becomes the law of the case for
future stages of the same litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.’” Capps v. Sullivan, 

, 353 (10th Cir.
1993) (quoting Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 

,
250 (D.C. Cir. 1987)). Accordingly, in the event that the district court concludes that Mr.
Demarest’s ineffective assistance of counsel claim (based on the new evidence) is
procedurally barred but further finds either cause and prejudice or a fundamental
miscarriage of justice, the district court’s decision on the merits of Mr. Demarest’s
ineffective assistance of counsel claim will be the law of the case and his habeas petition
should be granted.
               We further note that in granting the writ, the district court imposed certain
conditions. In particular, the court ordered Mr. Demarest’s release upon either the
expiration of sixty days from the entry of judgment or upon the commencement of state
proceedings to retry him for Mr. Hyams’s murder, whichever was earlier. The court also
ordered Mr. Demarest released on bond under certain conditions. See 

               In the event that the district court, through proceedings consistent with this
opinion, again grants Mr. Demarest’s petition (i.e., by finding procedural bar and cause
and prejudice or a fundamental miscarriage of justice), the determination of the
conditions on which the writ should be granted and of the conditions of Mr. Demarest’s
release will be a matter for the district court’s discretion.
               Finally, as the parties noted at oral argument, in light of its conclusion that
he received ineffective assistance of counsel, the district court did not address Mr.
Demarest’s other claims. See 

, 1454. We leave it to the
district court on remand to determine the appropriate disposition of these other claims.

                                              45
Nadworny v. Fair, 

, 1096 (1st Cir. 1989) (citations omitted). In the instant

case, that policy of comity, reflecting the mutuality of respect between state and federal

courts, leads us to vacate an exceptionally well-reasoned opinion by the district court, one

that forcefully expresses the fundamental importance of a defendant’s Sixth Amendment

right to effective assistance of counsel in a criminal proceeding. We stress that our

opinion in this case should not be read in any way as a criticism of the district court’s

incisive analysis of the conduct of Mr. Demarest’s trial counsel. Moreover, it is

noteworthy that in this appeal the state has not sought to defend that conduct, and we find

it difficult to imagine how that conduct might be characterized any differently than did

the district court--objectively unreasonable and materially prejudicial to Mr. Demarest.

       Nevertheless, these assessments of the conduct of Mr. Demarest’s counsel, as

strongly supported as they are, may only be reached by considering important evidence

not presented to the state courts in the post-conviction proceedings: the new testimony of

Ms. Bausch and Mr. Davidson, the strong scientific evidence offered in support of Mr.

Demarest’s defense by Dr. Kennedy, and the medical and psychiatric evidence from Drs.

Vedeal and Rehg. Therefore, our respect for the state courts requires us to remand this

case to the district court for a determination of whether this new evidence could now be

presented in those courts. If Mr. Demarest’s new evidence may still be presented in the

Colorado courts, then it is those courts, rather than the federal court, that should have the

opportunity to initially consider it. That conclusion follows directly from the Supreme


                                              46
Court’s statement that “‘it would be unseemly’” in our dual system of government to

allow a federal court to overturn a state court conviction without affording the state courts

an opportunity to correct a constitutional violation. See 

(quoting

).9

       Therefore, we first conclude that the interests of comity and federalism support our

consideration of the state’s failure-to-exhaust defense as to the new blood-spatter,

medical, and psychiatric evidence offered by Mr. Demarest at the federal hearing. Upon

reviewing this new evidence, as well as the new evidence offered by Ms. Bausch and Mr.

Davidson at the federal hearing, we further conclude that Mr. Demarest did not fairly

present his ineffective assistance of counsel claim to the Colorado courts and that he

therefore failed to exhaust his state remedies. Accordingly, we vacate the decision of the

district court and remand the case to the district court for a determination of whether Mr.

Demarest would now be procedurally barred under Colorado law from bringing an

ineffective assistance of counsel claim based on the new evidence.

       If the district court determines that Mr. Demarest’s ineffective assistance of

counsel claim would not be procedurally barred, then it should dismiss the claim without

prejudice so that it can now be considered by the Colorado courts. Alternatively, if the


       9
               In the event that Mr. Demarest’s ineffective assistance of counsel claim is
returned to the state courts, we note that the testimony of the witnesses at the federal
district court hearing may in certain circumstances be admissible in the state court
proceedings. See Colo. R. Evid. 804 (b)(1) (establishing exception to hearsay rule for
former testimony when declarant is unavailable).

                                             47
district court finds that Mr. Demarest’s claim would now be procedurally barred, it should

then determine under the applicable federal law whether Mr. Demarest can establish

cause and prejudice for the procedural default or, alternatively, whether a fundamental

miscarriage of justice would result from the failure to consider the merits of the claim

because Mr. Demarest has made a colorable showing that he is factually innocent of the

murder of Mr. Hyams. If Mr. Demarest makes such a showing of cause and prejudice or

a fundamental miscarriage of justice, the district court should grant Mr. Demarest’s

petition.

       We therefore VACATE the district court’s decision and REMAND the case to the

district court for proceedings consistent with this opinion.




                                             48