White v. McKinna

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUL 16 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
RICHARD C. WHITE,
Petitioner-Appellant,
v. No. 97-1370
(D.C. No. 96-M-2331)
MARC MCKINNA, Warden; (Colorado)
SUPREME COURT, STATE OF
COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, 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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause 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This order and judgment is not binding precedent, except under the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, or 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.
Richard White filed petition for writ of habeas corpus under 28 U.S.C. §
2254. The matter was referred to a magistrate judge who recommended dismissal
on the ground that petitioner had filed a “mixed petition” containing exhausted
and unexhausted claims. The district court issued an order denying the writ and
dismissing the action. We agree and affirm. 1
Mr. White was convicted in Denver District Court in 1993 of two counts of
sexual assault on a child and one count of intimidating a witness, for which he
sentenced to a total of ten years in prison. The Colorado Court of Appeals
affirmed the conviction and sentence on direct appeal and the Colorado Supreme
Court denied certiorari. Mr. White then filed for post-conviction relief in the
Denver District Court. When that motion was denied, Mr. White appealed to the
Colorado Court of Appeals, which reversed the trial court and remanded for an
evidentiary hearing. Mr. White’s motion for post-conviction relief, for which he
has been afforded state-appointed counsel, is still pending in state court and
encompasses many of the claims Mr. White is attempting to raise in his section
2254 petition.
A “mixed petition”, which contains exhausted and unexhausted claims,
must be dismissed. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Harris v.
Champion, 15 F.3d 1538, 1555 (10th Cir. 1994). Mr. White attempts to avoid this
1
We grant Mr. White’s motion to supplement the record on appeal.
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bar by asserting that his post-conviction relief proceeding has been deliberately
delayed, thereby excusing him from exhausting his state remedies. We have held
that “excessive and inexcusable delay” in a state direct appeal may excuse the
exhaustion requirement. See Harris, 15 F.3d at 1555. Here the alleged delay is in
a state post-conviction proceeding to which Mr. White has no federal
constitutional right. See Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987).
Moreover, any delay in the scheduling of Mr. White’s evidentiary hearing has
been caused primarily by a continuance requested by his own counsel, as well as
by Mr. White’s differences of opinion with prior counsel. Mr. White is not
entitled to circumvent the exhaustion requirement as a remedy for his unhappiness
with his counsel, especially given the fact that he has no constitutional right to
post-conviction counsel at all. See Coleman v. Thompson, 501 U.S. 722, 752
(1991); Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); Smith v. Sec’y of
New Mexico Dep’t of Corrections, 50 F.3d 801, 821 n.29 (10th Cir. 1995). Mr.
White has made no showing that he would not be allowed to proceed in this
matter without counsel if he so chooses. 2
On any application for collateral review, a certificate of appealability will
2
Mr. White complains that the Colorado courts have refused to entertain his
pro se motions while he is represented by counsel. While Mr. White cannot
represent himself so long as he has counsel, we find nothing in the record
indicating that the Colorado courts would deprive Mr. White of the opportunity to
represent himself if he elected to forego counsel.
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issue only if the “applicant has made a substantial showing of the denial of a
constitutional right.” Lennox v. Evans, 87 F.3d 431, 433 (10th Cir. 1996). There
has been no unconstitutional delay in the state post-conviction proceeding. Not
only does Mr. White have an available avenue for relief in state court, he may
also return to federal court upon exhausting those avenues if he fails to obtain the
relief he seeks.
The certificate of appealability is DENIED and the appeal is DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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