Powell v. Embry ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 15 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
CONNIE RAYMOND POWELL,
Petitioner - Appellant, No. 99-1175
v. (D.C. No. 97-WM-356)
LARRY EMBRY and ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before TACHA, 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 appeal from the district court’s dismissal of Petitioner
Connie Raymond Powell’s petition for a writ of habeas corpus filed pursuant to
*
This order and judgment is not binding precedent, except under the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.
28 U.S.C. § 2254. Petitioner was convicted in Colorado state court of first degree
sexual assault and was sentenced to 34 years’ imprisonment. On direct appeal,
his conviction was reversed and he was granted a new trial for a potential due
process violation. Petitioner subsequently was convicted a second time. His
second conviction was affirmed on appeal and the Colorado Supreme Court
denied certiorari.
In his habeas corpus petition, Petitioner alleged three claims: (1) a denial
of the right to a speedy trial under Colorado statutes; (2) a violation of his Fifth
Amendment protection from self-incrimination because the prosecutor used his
testimony from the first trial during the second trial; and (3) the failure of the
state trial court to offer a Curtis advisement concerning his right to testify.
The magistrate judge recommended that the petition be dismissed for
procedural default because Petitioner had not claimed in state court that his
federal constitutional rights were violated and he did not establish cause for the
default nor did he establish that failure to consider his claims would result in a
fundamental miscarriage of justice. See R., Doc. 18 at 3-5. After consideration
of Petitioner’s objections, the district court adopted the magistrate judge’s
recommendation for dismissal on the basis of procedural default as to all of
Petitioner’s claims except the Fifth Amendment claim. Noting that it was not
deciding the procedural bar issue, the district court addressed the merits of this
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claim. The district court denied the § 2254 habeas corpus petition on the Fifth
Amendment argument, explaining that “[i]t is well established that the
introduction of a defendant’s testimony at a former trial is admissible against him
in later proceedings.” Id., Doc. 27 at 5 (citing Fed. R. Evid. 801(d)(2)(A) and
Harrison v. United States, 392 U.S. 219, 222 (1968)). The court also summarily
rejected a belated claim of ineffective assistance of counsel. After dismissing the
habeas petition with prejudice, the district court denied Petitioner a certificate of
appealability and denied his motion for leave to proceed on appeal in forma
pauperis.
On appeal, Petitioner renews his motion for leave to proceed on appeal in
forma pauperis with this court and requests a certificate of appealability. He
argues that (1) the speedy trial claim was presented to the state court as a
deprivation of his federal constitutional rights; (2) the district court should have
considered Petitioner’s claim of actual innocence and the state court record; and,
(3) based on the first two claims, the district court erred in refusing to grant a
certificate of appealability.
After reviewing Petitioner’s brief, the record on appeal which included a
record of certain state court proceedings, the report and recommendation of the
magistrate judge, and the district court’s Order filed March 29, 1999, we conclude
that the district court’s dismissal of habeas relief was correct for the reasons
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stated in its order. Petitioner fails to meet either the cause and prejudice or
fundamental miscarriage of justice standards, or any other exception required to
overcome his state procedural default, see Anderson v. Harless, 459 U.S. 4, 6-7
(1982); Miranda v. Cooper, 962 F.2d 392, 397 (10th Cir. 1992), and his Fifth
Amendment complaint is plainly without merit. For these reasons, Petitioner has
not made a substantial showing of the denial of a constitutional right as required
by 28 U.S.C. § 2253(c)(2). We GRANT leave to proceed on appeal in forma
pauperis, and we DENY the application for a certificate of appealability.
It is ordered that the appeal is DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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