Pressel v. McKinna ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 1 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
HANS G. PRESSEL,
Petitioner-Appellant,
v. No. 97-1204
MARK MCKINNA and the, (D.C. No. 96-Z-2474)
ATTORNEY GENERAL OF THE (D.Colo.)
STATE OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**
Petitioner, appearing pro se, appeals the dismissal without prejudice of his petition
for a writ of habeas corpus under 28 U.S.C. § 2254. Our jurisdiction arises under 28
*
This order and judgment is not binding precedent, except under the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.
**
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. 34.1.9. The case is therefore ordered
submitted without oral argument.
U.S.C. § 2253. We grant petitioner’s application for a certificate of appealability and
affirm. 28 U.S.C. § 2253(c).
Petitioner pleaded guilty to theft and is currently serving an eight-year sentence in
Colorado state prison. Petitioner appealed his sentence to the Colorado court of appeals.
The court of appeals affirmed his sentence, and petitioner did not file a petition for
certiorari to the Colorado Supreme Court. In August 1996, petitioner filed a motion for
post-conviction relief which the trial court subsequently denied. Petitioner did not appeal
the denial. On October 24, 1996, petitioner filed his petition for a writ of habeas corpus
in the district court. As grounds for relief, petitioner claims that (1) there was insufficient
evidence to support his conviction; (2) his guilty plea was involuntary; (3) he received
ineffective assistance of counsel; and (4) he was subject to cruel and unusual punishment.
The district court referred the matter to a magistrate judge for recommendation. The
district court adopted the magistrate judge’s recommendation and dismissed the petition
without prejudice for failure to exhaust state remedies.
We have reviewed petitioner’s brief and the entire record before us and agree with
the decision of the district court. A state prisoner, absent exceptional circumstances, may
not obtain federal habeas corpus relief unless all available and adequate state court
remedies have been exhausted. Rose v. Lundy, 455 U.S. 509, 515 (1982); Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion
requirement is satisfied if the issue has been presented to the highest state court, either by
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direct review or in a post-conviction motion. Dever, 36 F.3d at 1535. In this case, as
outlined above, petitioner failed to exhaust his state court remedies. Accordingly, the
judgment of the district court is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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