Johnson v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD WALTER JOHNSON,
Petitioner-Appellant,
v. No. 98-1101
(D.C. No. 98-D-27)
GALE A. NORTON, PETER (D. Colo.)
WARREN BOOTH, GILBERT
MARTINEZ, JOHN WESLEY
ANDERSON, and ATTORNEY
GENERAL FOR THE STATE
OF COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , BARRETT , and TACHA , 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This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Petitioner Richard Walter Johnson applies for a certificate of appealability
so that he might appeal the district court’s dismissal of his petition for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254. He further requests
permission to proceed on appeal without prepayment of costs or fees. For the
reasons stated below, we deny the application for a certificate of appealability
and dismiss the appeal. We further deny permission to proceed on appeal without
prepayment of costs or fees.
Mr. Johnson is incarcerated in the El Paso County Jail in Colorado Springs,
Colorado. It appears from his § 2254 petition that his conviction was affirmed by
the Colorado Court of Appeals but that Mr. Johnson did not further appeal that
judgment to the Colorado Supreme Court. He did file for state post-conviction
relief, but again failed to appeal the denial of that petition to the highest state
court having jurisdiction over it. For these reasons, the district court denied
Mr. Johnson’s petition for failure to exhaust state remedies. See Rose v. Lundy ,
455 U.S. 509, 515 (1982); see also 28 U.S.C. § 2254(b)(1).
We review the legal basis for the district court’s dismissal of Mr. Johnson’s
§ 2254 petition de novo. See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.
1998). After review of the materials submitted by Mr. Johnson and the record in
-2-
this case, we find no fault with the order of the district court. Mr. Johnson’s
application for a certificate of appealability is DENIED because he has failed to
make a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). His requests to proceed on appeal without prepayment of costs or
fees and for rehearing and release pending appeal are similarly DENIED.
This appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
-3-