* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 notmaterially 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 ora l 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 forma1 While the Rule 35(c) motion was pending in state co urt, Petitioner filed a

§ 2254 petition for writ of habeas corpus, which wa s 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). -2- pauperis
. Petitioner was convicted in Denver District Court i n 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 di rect appeal and writ of certiorari were denied by the state courts, Petitioner filed apost-conviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Pro cedure. The state trial court denied the motion without a hearing, but the appeal s court reversed and remanded for an evidentiary hearing. On remand, the state t rial 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 h abeas 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 fi ve claims alleging numerous violations of his Fifth, Sixth, and Fourte enth 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 reco rd that Petitioner appealed the state trial court’s December 11, 1998 denial of the Rule 35(c) motion. The-3-

magistrate judge ordered Petitioner to show cause w hy the habeas corpus petition should not be denied as a mixed petition because itraised claims that were not exhausted in state court. After considering Petiti oner’s response to the show cause order, the district court carefully reviewed each issue raised and dismissed the petition without prejudice, finding that Petiti oner did not directly appeal the denial of the Rule 35(c) motion and holding that Pe titioner had failed to exhaust four of the five claims without cause. The distric t court also held that Petitioner had produced no new evidence to establish actual in nocence and show that a fundamental miscarriage of justice would result. I n addition, the court held that the first claim, the violation of the right to a sp eedy 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 d istrict 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 applicationfor a certificate of appealability, his brief, and the record in this ca se, we conclude that the record and the law fully support the district court’s Orde r and Judgment filed June 14, 1999. For the reasons set forth therein and becaus e Petitioner has not made a-4-

substantial showing of the denial of a constitution al 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