Bailey v. Henderson ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 17 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
JAMES ROBERT BAILEY,
Petitioner-Appellant,
v. No. 98-1044
(D.C. No. 97-B-1534)
RANDY HENDERSON, and THE (Colorado)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
James R. Bailey appeals the district court’s holding that his action under 28
U.S.C. § 2254 is procedurally barred. For the reasons set out below, we deny Mr.
Bailey’s motions to proceed on appeal informa pauperis and for a certificate of
appealability, and we dismiss the appeal.
The procedural history to this action is complicated. Prior to pleading
guilty to various narcotics offenses, James R. Bailey claimed he was denied his
right to a speedy trial. After he was sentenced, he attempted to appeal his
conviction directly. The Colorado Court of Appeals dismissed his claim on the
grounds that guilty pleas could be reviewed only on collateral attack, not on direct
appeal. Mr. Bailey petitioned for a writ of certiorari, which the Colorado
Supreme Court denied. He then filed for habeas corpus relief pursuant to 28
U.S.C. § 2254. This court affirmed the district court’s holding that Mr. Bailey
had not exhausted his state remedies and dismissed his petition. See Bailey v.
Wilson, 1993 WL 487942 (10th Cir. filed Nov. 28, 1993).
Thereafter, Mr. Bailey properly appealed his guilty plea in state court,
alleging a violation of his statutory and constitutional right to a speedy trial. The
Colorado Court of Appeals denied relief. He again petitioned the Colorado
Supreme Court for a writ of certiorari. He made no mention of his Sixth
Amendment right to a speedy trial, however, but instead focused solely on his
statutory right to a speedy trial under Colorado law.
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After his second petition for a writ of certiorari was denied, Mr. Bailey
filed this section 2254 action in federal court 1 claiming 1) a violation of his
Colorado statutory right to a speedy trial, 2) a violation of his constitutional right
to a speedy trial, and 3) a denial of his right to a direct appeal of the state trial
court’s dismissal of his speedy trial motion. 2 The magistrate recommended
dismissal of the petition because Mr. Bailey did not raise the constitutional issue
in his second petition for a writ of certiorari and consequently that claim was not
properly exhausted. The district court dismissed the petition as procedurally
barred.
Mr. Bailey raises the same issues on appeal. His claims under Colorado
law are not properly before us because section 2254 authorizes a habeas corpus
action only for violations of the federal Constitution, not for state law claims.
See 28 U.S.C. § 2254(a). We agree with the decisions below finding Mr. Bailey’s
Sixth Amendment claim is procedurally barred because he did not exhaust his
1
This petition does not constitute “a second or succesive petition” under
28 U.S.C. § 2244(b)(3)(A) because Mr. Bailey’s prior section 2254 petition was
dismissed for failure to exhaust state remedies. See McWilliams v. Colorado, 121
F.3d 573,575 (10th Cir. 1997).
2
The magistrate issued an order to show cause which stated, in part,
“[p]etitioner shall remain in custody and within the jurisdiction of this court until
further order.” Mr. Bailey claims on appeal that prison officials relied on this
language to revoke their prior decision to parole him, thereby violating his due
process and equal protection rights. On March 23, 1998, Mr. Bailey was paroled
in this case. This claim is therefore moot.
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state court remedies with respect to this claim and can no longer do so. See
C OLO . R EV . S TAT . § 16-5-402 (1998). We therefore DENY Mr. Bailey’s motions
to proceed informa pauperis and for a certificate of appealability and DISMISS
the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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