*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 26 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD C. WHITE, 

Petitioner - Appellant, No. 99-1275

v. (D.C. No. 98-Z-2809)

LARRY EMBRY, Warden, and

ATTORNEY GENERAL OF THE

STATE OF COLORADO, 

(D. Colo.)

Respondents - Appellees.

 

ORDER AND JUDGMENT*

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs 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 case is before the court on Richard C. White’s pro se application for a

certificate of appealability and his motion for leave to proceed on appeal in forma
1While the Rule 35(c) motion was pending in state court, Petitioner filed a

§ 2254 petition for writ of habeas corpus, which was denied as a mixed petition

for failure to exhaust certain claims. See White v. McKinna, 153 F.3d 730, 1998

WL 396561 (10th Cir. 1998).

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pauperis.

Petitioner was convicted in Denver District Court in 1993 of sexual assault

on a child, sexual assault by a person in authority, and intimidating a witness. He

was sentenced to ten years in prison. After his direct appeal and writ of certiorari

were denied by the state courts, Petitioner filed a post-conviction motion pursuant

to Rule 35(c) of the Colorado Rules of Criminal Procedure. The state trial court

denied the motion without a hearing, but the appeals court reversed and remanded

for an evidentiary hearing. On remand, the state trial court conducted the

evidentiary hearing and then, on December 11, 1998, it denied Petitioner’s Rule

35(c) motion a second time.1

 He thereafter filed this petition for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States District Court for the District

of Colorado.

In the habeas corpus petition, Petitioner raised five claims alleging

numerous violations of his Fifth, Sixth, and Fourteenth Amendment rights. While

he alleged that four of his five claims were raised in his Rule 35(c) postconviction motion, there is no evidence in the record that Petitioner appealed the

state trial court’s December 11, 1998 denial of the Rule 35(c) motion. The
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magistrate judge ordered Petitioner to show cause why the habeas corpus petition

should not be denied as a mixed petition because it raised claims that were not

exhausted in state court. After considering Petitioner’s response to the show

cause order, the district court carefully reviewed each issue raised and dismissed

the petition without prejudice, finding that Petitioner did not directly appeal the

denial of the Rule 35(c) motion and holding that Petitioner had failed to exhaust

four of the five claims without cause. The district court also held that Petitioner

had produced no new evidence to establish actual innocence and show that a

fundamental miscarriage of justice would result. In addition, the court held that

the first claim, the violation of the right to a speedy trial, was without merit

because any delay was not attributable to the court. As a result of its dismissal of

the habeas corpus petition without prejudice, the district court denied Petitioner’s

application for a certificate of appealability and his motion for leave to proceed

on appeal in forma pauperis. This appeal followed in which Petitioner argues that

the facts support his claim of a speedy trial violation and they should excuse the

exhaustion requirement.

Having thoroughly examined Petitioner’s application for a certificate of

appealability, his brief, and the record in this case, we conclude that the record

and the law fully support the district court’s Order and Judgment filed June 14,

1999. For the reasons set forth therein and because Petitioner has not made a
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substantial showing of the denial of a constitutional right, we deny the renewed

application for a certificate of appealability and the motion for leave to proceed

on appeal in forma pauperis and dismiss the appeal.

DENIED and DISMISSED.

Entered for the Court

Monroe G. McKay

Circuit Judge