United States v. Benally ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-2125
v.
(D.C. No. CIV-99-649 SC)
(Dist. N.M.)
JONATHAN BENALLY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
Appellant Jonathan Benally brings this pro se habeas appeal under 28
U.S.C. § 2255. In this appeal, Benally raises the same six issues that were
considered and rejected either by this court on direct appeal or by the district
court on habeas review. Because he does not present any new facts or arguments
to support these issues, and because we believe these issues were properly
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case 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not binding precedent, except under the doctrines of law of the case, res judicata,
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.
disposed of when they were considered previously, we deny certificate of
appealability and dismiss the appeal.
The facts of this case are set out in detail in this court’s opinion on direct
appeal, United States v. Benally, No. 96-2296, 1998 WL 339688 (10th Cir. June
24, 1998). We summarize them briefly here. On October 3, 1995, Jonathan
Benally was drinking with friends. He met, drank with, and then fought Russell
John later that night. Benally was found by a federal jury to be guilty of second
degree murder for beating John to death. At trial it was stipulated that Benally
and John were enrolled members of the Navajo tribe and that the altercation took
place within the boundaries of the Navajo Indian Reservation in the State of New
Mexico. The federal trial court had jurisdiction under 18 U.S.C. § 1153, which
provides for the application of select criminal laws (including murder and
manslaughter) to crimes committed in Indian country by Native Americans, and
18 U.S.C. § 3231.
At the outset, we consider whether Benally filed a timely habeas appeal.
We conclude that he did. The district court dismissed Appellant’s § 2255 motion
on January 11, 2000. See Doc. 11. The deadline for filing this appeal was
Monday, March 13, 2000 – sixty days from dismissal of Benally’s motion
(Saturday, March 11, 2000), forwarded to the next working day. See Fed. R. App.
P. 4(a)(1)(B) (sixty days); Fed. R. App. P. 26(a)(3) (push deadline to next
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working day). The envelope in which Benally’s Notice of Appeal was mailed was
postmarked March 13, 2000. See Record Folder, attached to left side (Marked
“A”); see also Fed. R. App. P. 4(c)(1) (establishing “mailbox rule” for inmates).
Benally mistakenly sent this notice of appeal to the court of appeals, rather than
to the district court. When this happens, however, Federal Rule of Appellate
Procedure 4(d) (formerly 4(a)(1)) provides that the notice shall be deemed filed
and transmitted to the district court. See Knox v. Wyoming, 959 F.2d 866, 867-68
n.2 (10th Cir. 1992). Thus, the mailbox rule for inmates, Rule 4(c)(1), and the de
jure transmittal to the district court, Rule 4(d), combine to make this appeal
timely.
In his appellate brief, Benally raises six issues: (1) ineffective assistance of
counsel; (2) failure to instruct the jury on the lesser included offense of
involuntary manslaughter; (3) violation of Miranda v. Arizona; (4) speedy trial
violation; (5) improper refusal to reduce his sentence for acceptance of
responsibility; and (6) unconstitutional racial discrimination in selection of the
grand and petit juries. This court considered and rejected issues two and five on
direct appeal, see Benally, 1998 WL 339688, at *3-5, and Appellant does not raise
any new facts or legal arguments in his habeas petition. Similarly, the magistrate
judge on habeas review considered and rejected the substance of all six issues.
See Doc. 8 (Magistrate Judge’s Proposed Findings and Recommended
-3-
Disposition, filed October 29, 1999). The district court adopted the magistrate
judge’s findings and recommended disposition. See Doc. 11. While Benally
formulates these issues in different ways in this appeal, we believe the substance
of each issue has previously been correctly dealt with by a court in the course of
these proceedings. After reviewing the substance of each claim, we agree with
the district court that Appellant has failed to make a substantial showing of a
denial of a constitutional right. See 28 U.S.C. §2253(c)(2); see also Doc. 13
(district court’s denial of certificate of appealability for same reason).
Therefore, for substantially the reasons stated in the district court’s order
and the magistrate judge’s findings and recommended disposition, we decline to
issue a certificate of appealability. Since this appeal is without merit, we deny his
motion to proceed in forma pauperis. See Fed. R. App. P. 24. This appeal is
accordingly DISMISSED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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