*

 This order and judgment is not binding precedent, except under the doctrines of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 will not materially assist the disposition of this appeal. 

See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without oral

argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 9 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

RAYMOND E. KENNEY,

Petitioner-Appellant,

v. Nos. 98-1317

 98-1324

STATE OF COLORADO and

ATTORNEY GENERAL FOR THE

STATE OF COLORADO,

Respondents-Appellees.

(D.C. No. 97-D-2218)

(D. Colo)

 

ORDER AND JUDGMENT*

 

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**

 

Petitioner Raymond E. Kenney seeks a certificate of appealability and in forma

pauperis status to appeal the district court’s order dismissing his 28 U.S.C. § 2254

petition for a writ of habeas corpus. We conclude Petitioner has not made a substantial
2

showing of the denial of a constitutional right. Accordingly, we deny his request for a

certificate of appealability and dismiss the appeal. Petitioner’s motion to proceed in

forma pauperis is denied as moot.

On September 23, 1996, Petitioner began serving a prison term in Hawaii. 

Approximately two months later, on November 20, 1996, prison officials received a

detainer for Petitioner from the State of Colorado. The State of Colorado apparently

sought to extradite Petitioner for use of an unauthorized credit instrument. Petitioner

learned about the detainer on February 21, 1997. On April 1, 1997, Petitioner advised the

Warden of the Hawaii State Penitentiary, in writing, of his wish to have a final disposition

of the charges underlying the Colorado detainer. The Warden forwarded Petitioner’s

request to the Eagle County, Colorado District Attorney. The State of Colorado did not

act on Petitioner’s request until August 11, 1997, when it extradited him to face the

Colorado charge. On November 25, 1997, Petitioner pled guilty in Colorado state court

to use of an unauthorized credit instrument and received a ninety-day sentence.

While incarcerated in Colorado, Petitioner filed the instant habeas petition in the

district court complaining that prior to pleading guilty to the Colorado charges, he was

deprived of his rights to due process and equal protection when respondents violated: (1)

the Interstate Agreement on Detainers Act (IADA) by not giving him notice that Colorado

authorities were lodging a state detainer against him while he was incarcerated in Hawaii;

(2) the IADA by bringing him to trial more than 180 days after he requested a final
1

 The district court dismissed Petitioner’s habeas application on July 22, 1998. On

August 17, 1998, Petitioner filed a “Financial Affidavit” which the district court

construed as a timely filed notice of appeal. Construing the “Financial Affidavit” as the

functional equivalent of a timely filed notice of appeal, see Smith v. Barry, 502 U.S. 244,

248-49 (1992), we assigned case number 98-1317 to Petitioner’s appeal. On August 24,

1998, Petitioner filed a pro se “notice of appeal.” We assigned case number 98-1324 to

that appeal. Under Fed. R. App. P. 4(a)(1), a Petitioner appealing from the denial of

habeas relief has thirty days in which to file a notice of appeal. Petitioner filed his second

notice of appeal four days past the thirty-day deadline. Compliance with Rule 4 is

mandatory and jurisdictional. Accordingly, we have no jurisdiction to reach the merits of

98-1324, and DISMISS that appeal. 

3

disposition of the charges; and (3) the Uniform Criminal Extradition Act by not providing

him with a pretransfer hearing. The district court dismissed the petition. Petitioner has

since served the Colorado sentence and is currently residing in Hawaii. Because

Petitioner has already been extradited to Colorado, convicted under its laws, and served

the Colorado sentence, his habeas petition is moot. See Kearns v. Turner, 837 F.2d 336

(8th Cir. 1988); Burrus v. Turnbo, 743 F.2d 693 (9th Cir. 1984), vacated as moot sub

nom, Hijar v. Burrus, 474 U.S. 1016 (1985). Accordingly, we are without jurisdiction to

hear his appeal.

In any event, Petitioner would not be entitled to a certificate of appealability even

if we assumed that his application for habeas relief were not moot.1 We may grant a

certificate of appealability only where a Petitioner demonstrates the substantial showing

of the denial of a constitutional right. United States v. Simmonds, 111 F.3d 737, 746

(10th Cir. 1997). Assuming that the alleged violations of the IADA and UCEA rise to the

level of constitutional violations, Petitioner’s argument must fail. “When a criminal
4

defendant has solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Defendant pled guilty in Colorado state

court after the alleged constitutional violations occurred. Consequently, he waived his

right to raise them in a subsequent appeal. See id. Therefore, because he cannot make a

substantial showing of the denial of a constitutional right, Petitioner is not entitled to a

certificate of appealability.

APPEALS DISMISSED; MOTION TO PROCEED IN FORMA PAUPERIS

DENIED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge