Braun v. State of Kansas ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
CONRAD J. BRAUN,
Petitioner-Appellant, No. 02-3258
v. (D.C. No. 02-CV-3048-DES)
STATE OF KANSAS, (D. Kansas)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining Petitioner’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2254 prisoner appeal. In his habeas petition,
Mr. Braun sought relief from alleged constitutional errors in four state court
convictions for which he had fully served the sentences imposed. The magistrate
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
judge recommended that Petitioner be denied federal habeas relief since he was
no longer in custody pursuant to a state court judgment. After consideration of
Petitioner’s objections, the district court dismissed the petition for lack of subject
matter jurisdiction. Although Petitioner originally characterized his pleading as a
petition for a writ of habeas corpus, he titled his amended filing a petition for a
writ of coram nobis. The district court concluded that it lacked jurisdiction
regardless of how the petition and amended petition were construed.
Finding no merit in any of Mr. Braun’s arguments, the district court
declined to grant him a certificate of appealability. Petitioner then applied to this
court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
We have carefully reviewed Mr. Braun’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner’s brief raises an issue which meets our standards for the grant of a
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certificate of appealability. For substantially the same reasons as set forth by the
district court in its order of July 8, 2002, adopting the magistrate judge’s Report
and Recommendation, we cannot say “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner.” Id. We DENY Petitioner’s request for a certificate of
appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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