Filed: Mar. 14, 2007
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit March 14, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court ALBERT DENNIS ZAM PEDRI, Petitioner - A ppellant, No. 06-4223 v. (D.C. No. 2:05-CV-139-TC) (D. Utah) STA TE OF U TA H , Respondent - Appellee. OR DER DENYING A CERTIFICATE OF APPEALABILITY Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges. Albert Zampedri, a state prisoner proceeding pro se, requests a certificate of appealability (“COA”) t
Summary: F I L E D United States Court of Appeals Tenth Circuit March 14, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court ALBERT DENNIS ZAM PEDRI, Petitioner - A ppellant, No. 06-4223 v. (D.C. No. 2:05-CV-139-TC) (D. Utah) STA TE OF U TA H , Respondent - Appellee. OR DER DENYING A CERTIFICATE OF APPEALABILITY Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges. Albert Zampedri, a state prisoner proceeding pro se, requests a certificate of appealability (“COA”) to..
More
F I L E D
United States Court of Appeals
Tenth Circuit
March 14, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ALBERT DENNIS ZAM PEDRI,
Petitioner - A ppellant,
No. 06-4223
v. (D.C. No. 2:05-CV-139-TC)
(D. Utah)
STA TE OF U TA H ,
Respondent - Appellee.
OR DER DENYING A CERTIFICATE
OF APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Albert Zampedri, a state prisoner proceeding pro se, requests a certificate
of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. §
2254 habeas petition. For substantially the same reasons set forth by the district
court, we D EN Y a COA and DISM ISS.
In August 2002, Zampedri was convicted in Utah state court of aggravated
attempted murder and attempted murder. He unsuccessfully appealed his
conviction to the Utah Court of Appeals. Before that court, he argued: (1) The
trial court erred in instructing the jury that the defendant must have acted
“know ingly”; (2) Counsel was ineffective in failing to challenge those
instructions; (3) Counsel was ineffective in failing to move for a directed verdict
because the evidence was insufficient to support the necessary mens rea; and (4)
The trial court erred in failing to enter a directed verdict on its own motion.
Zampedri then sought a w rit of certiorari from the Utah Supreme Court,
advancing three claims: (1) Counsel was ineffective for reasons not related to the
jury instructions or directed verdict issues; (2) The trial court erred in denying his
request to terminate counsel; and (3) A drug-addicted police officer handled
critical evidence in violation of state law. The State opposed granting the petition
on the grounds that Zampedri did not raise these issues before the Court of
Appeals. The Utah Supreme Court denied his petition in a summary order on
January 20, 2005.
Zampedri then filed a petition for habeas relief in federal district court,
arguing: (1) Counsel was ineffective in failing to object (he did not specifically
identify what objections counsel should have made); (2) The trial court erred in
failing to provide him with new counsel; (3) A police officer handling crucial
evidence was using drugs both before his arrest and during the trial in violation of
state law; (4) Other government witnesses engaged in witness tampering; and (5)
The prosecution engaged in witness tam pering. The district court denied his
petition, finding that these claims were procedurally defaulted because Zampedri
failed to raise them before the Utah Court of Appeals. See Thomas v. Gibson,
218 F.3d 1213, 1221 (10th Cir. 2000) (“This court may not consider issues raised
-2-
in a habeas petition that have been defaulted in state court on an independent and
adequate procedural ground unless the petitioner can demonstrate cause and
prejudice or a fundamental miscarriage of justice.”). Further, the district court
ruled that Zampedri did not show sufficient cause and prejudice or a fundamental
miscarriage of justice to overcome this bar.
On appeal, Zampedri raises the following arguments: (1) Counsel was
ineffective in failing to fully investigate the crime scene; (2) Counsel was
ineffective in failing to move for a directed verdict and in failing to object to jury
instructions that improperly identified the requisite mens rea as “knowingly”; (3)
The trial court erred in failing to enter a directed verdict based on insufficiency of
the evidence; (4) The trial court erred in using the word “knowingly” when
instructing the jury on the mens rea element of the offenses; (5) Counsel was
ineffective in failing to inform the trial judge that witness tampering had occurred
(which Zampedri argues indicates that there was a conspiracy to convict him); (6)
He is actually innocent; (7) The officer handling critical evidence was using drugs
in violation of state law; and (8) Police officers perjured themselves during the
trial.
A state petitioner pursuing federal habeas relief must exhaust state
remedies with respect to all claims presented to a federal court. 28 U.S.C.
§ 2254(b), (c). Zampedri did not present his second, third, and fourth claims to
the Utah Supreme Court, and thus has procedurally defaulted those claims. See
-3-
Dulin v. Cook.
957 F.2d 758, 759 (10th Cir. 1992) (holding that a U tah state
prisoner failed to exhaust state procedural remedies by not presenting claims to
the U tah Supreme Court). As correctly decided by the district court, Zampedri
procedurally defaulted with respect to his first, fifth, seventh, and eighth claims
because he did not raise them before the Utah Court of Appeals on direct appeal.
See
Thomas, 218 F.3d at 1221; DeBry v. Noble,
889 P.2d 428, 444 (Utah 1995)
(“Issues not raised in the court of appeals may not be raised on certiorari unless
the issue arose for the first time out of the court of appeals’ decision.”). H is
actual innocence claim fails because Zampedri has not presented evidence that
makes it “more likely than not that no reasonable juror” would have convicted
him – he has only made conclusory allegations about his innocence in his brief to
this court. See Schlup v. Delo,
513 U.S. 298, 327 (1995) (holding that in order
for a petitioner to succeed on an actual innocence claim, he or she must
demonstrate that it is more likely than not that no reasonable juror could convict
petitioner in light of the new evidence).
Accordingly, we D EN Y a COA and DISM ISS Zampedri’s appeal. W e
G R A N T Zampedri’s motion to proceed in forma pauperis.
Entered for the Court
Carlos F. Lucero
Circuit Judge
-4-