Ayala v. Zavaras

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 5 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN AYALA,
Petitioner - Appellant,
v. No. 98-1192
(D.C. No. 98-D-67)
ZAVARAS, Executive Director; GAIL (D. Colo.)
NORTON, Attorney General of the
State of Colorado,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
Petitioner-Appellant Steven Ayala, a pro se litigant, seeks to appeal the
district court’s dismissal without prejudice of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254(b)(1). He has filed a motion for leave to
proceed on appeal without prepayment of costs or fees and an application for a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in 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.
certificate of appealability. He has also requested court-apppointed counsel and
seeks to supplement his pleadings.
We agree with the district court that Mr. Ayala has not demonstrated that he
has exhausted state court remedies regarding his claims. See 28 U.S.C. §
2254(b)(1)(A); see also Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997).
Nor has he demonstrated futility. See 28 U.S.C. § 2254(b)(1)(B)(i) & (ii); see also
Wallace v. Cody, 951 F.2d 1170, 1171 (10th Cir. 1991). Accordingly, all pending
requests for relief, including his motion to proceed in forma pauperis and his
request for court-appointed counsel are DENIED, and the appeal is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-2-