F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                       UNITED STATES COURT OF APPEALS                OCT 4 1999

                                    TENTH CIRCUIT                PATRICK FISHER
                                                                         Clerk


 ROBERT R. SPRINGFIELD,

           Plaintiff - Appellant,
 vs.                                                      No. 99-8034
                                                    (D.C. No. 97-CV-167-B)
 WILLIAM HETTGAR, Warden;                                  (D. Wyo.)
 and the ATTORNEY GENERAL
 OF THE STATE OF WYOMING,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Springfield, an inmate appearing pro se, seeks to appeal from the

denial of his habeas petition, 28 U.S.C. § 2254. Mr. Springfield was convicted in

Wyoming state court of first degree sexual assault and that conviction was

affirmed on appeal.      See Springfield v. Wyoming , 

(1993). He


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
claims that he exhausted state post-conviction remedies, but did not attach any

supporting documentation to his petition.

       The district court denied his federal habeas claims on the merits and

without a response from the state. The district court relied upon   28 U.S.C.

§ 2254(b)(2) which allows a federal habeas court to deny an unexhausted petition

that obviously lacks merit.   See Hoxsie v. Kerby , 

, 1242-43 (10th

Cir. 1997). According to the district court, “irrespective of whether Mr.

Springfield has exhausted his state remedies, his petition should be denied for

failure to show that he is in custody in violation of the constitution or federal

law.” R. doc. 6 at 2. The district court also denied a certificate of appealability.

       As a preliminary matter, we question reaching the merits of Mr.

Springfield’s petition without review of any state postconviction proceedings.

None of the federal claims now advanced by Mr. Springfield were raised upon

direct appeal. While § 2254(b)(2) allows for consideration of unexhausted

claims, Mr. Springfield alleged that he exhausted his federal claims in state

postconviction proceedings. Concerns of comity and federalism suggest that the

state court postconviction proceedings be considered. Where the petitioner has

not included such proceedings, such information may be provided by the state in

an answer. See R. 5, Rules Governing § 2254 Cases in the United States District

Courts. It is not possible to apply the current standard of review to any state


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court determinations of federal law, 28 U.S.C. § 2254(d), when those

determinations are not part of the record. Likewise, it is not possible to determine

the extent of exhaustion and whether any of the federal claims are procedurally

barred.

         With that concern, we reach the merits. Mr. Springfield raises four issues

on appeal. First, Mr. Springfield claims a violation of his right to confrontation

and due process caused by his absence from a DNA suppression hearing.

Specifically he alleges that when his attorney told him he need not be present, the

effect was to exclude him from the most critical phase of the trial and prevent him

challenging evidence and testimony that would later be presented by videotape at

trial.

         We need not decide whether a defendant’s right to be present extends to a

pretrial suppression hearing.   See generally Christopher J. Bello, Annotation,

Right of Accused to be Present at Suppression Hearing or at other Hearing or

Conference Between Court and Attorneys Concerning Evidentiary Questions        , 

(1983 & 1998 Supp.). Assuming such a right, we also need not

decide whether Mr. Springfield voluntarily waived that right. Mr. Springfield’s

claim fails because he cannot identify any specific contribution that his presence

might have made. The Supreme Court “has emphasized that this privilege of

presence is not guaranteed ‘when presence would be useless, or the benefit but a


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shadow . . . .’” Kentucky v. Stincer , 

, 745 (1987) (quoting       Snyder v.

Massachusetts , 

, 105-06 (1934)). On direct appeal, the Wyoming

Supreme Court addressed the propriety of including the DNA evidence at great

length, see Springfield , 860 P.2d at 439-48, and Mr. Springfield has failed to

show that his presence at the evidentiary hearing would have affected the outcome

in any manner. For the same reason, Mr. Springfield cannot show prejudice to

succeed on the related claim that his trial counsel was ineffective in advising him

he need not attend the suppression hearing.         See Strickland v. Washington , 

, 687 (1984) (to succeed on an ineffectiveness claim, defendant must

show that deficient performance prejudiced his defense).

      Second, Mr. Springfield challenges the trial judge’s decision to exclude

certain testimony of prosecution witness Shane Schenderline. According to Mr.

Springfield, the testimony tended to show that the witness had been pressured to

lie about Mr. Springfield’s presence near the crime scene. He argues that he was

denied his right of confrontation to impeach the witness. He argues that had this

testimony been admitted, it could have been used to attack the chain of custody

regarding his voluntarily submitted body samples and the rape kit evidence.

      On direct appeal, Mr. Springfield apparently argued that none of Mr.

Schenderline’s testimony should have been admitted. In considering this issue,

the Wyoming Supreme Court indicated that Mr. Schenderline’s inability to place


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Mr. Springfield near the crime scene was brought out, and this “only helped

appellant’s case.”   Springfield , 860 P.2d at 450. The confrontation right is not

absolute; a defendant must be given “an opportunity for effective cross-

examination” of witnesses against him, but that is not synonymous with eliciting

all information that might contradict unfavorable testimony.    Pennsylvania v.

Ritchie , 

, 53 (1987) (internal quotation marks omitted). Here, the

witness did not provide the unfavorable testimony that the state expected, and

sufficient information was brought out for the jury to make a “discriminating

appraisal” of the presence issue.   See Miranda v. Cooper , 

, 401-403

(10th Cir. 1992). No more was required.

       Insofar as any evidentiary ruling on this issue, a federal habeas court is not

empowered to correct state law evidentiary errors, and Mr. Springfield has not

shown that the state district court’s evidentiary decision rendered his trial

fundamentally unfair.    See Estelle v. McGuire , 

, 67-68 (1991);    Maes

v. Thomas , 

, 987 (10th Cir. 1995).

       Third, Mr. Springfield claims that police investigators lied to him when

they told him they wanted body samples for investigation of an unrelated rape.

He alleges that this deception made his consent involuntary and tainted a later

search warrant based upon the original body samples. Federal habeas review of

this Fourth Amendment claim would be barred if the state provided an


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opportunity for full and fair litigation of this claim.      See Stone v. Powell , 

, 494 (1976). As this issue does not appear to have been raised at trial or

on direct appeal, quite likely it is procedurally barred. Regardless, we agree with

the district court that this claim is far too general to support relief given the

factual nature of a voluntariness inquiry.      See Hawkins v. Hannigan , No. 97-3326,

, at *12 (10th Cir. Aug. 4, 1999) (dismissing ineffective counsel

claim based on Fourth Amendment for failure to demonstrate involuntariness).

Conspicuously absent from the petition are facts–who, what, when and where--

that might support the general allegation.

       Finally, Mr. Springfield alleges ineffective assistance of counsel, both at

the trial level and on appeal, for failing to raise the three previous challenges.

Given our disposition of the claims on the merits, Mr. Springfield cannot

establish prejudice, and therefore cannot prevail on an ineffective assistance

claim. See Strickland , 466 U.S. at 697 (court need not address deficient

performance if prejudice cannot be established).

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

is DISMISSED.

                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge


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