*This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 17 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES ROBERT BAILEY,

Petitioner-Appellant,

v.

RANDY HENDERSON, and THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents-Appellees.

No. 98-1044

(D.C. No. 97-B-1534)

(Colorado)

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.
-2-

James R. Bailey appeals the district court’s holding that his action under 28

U.S.C. § 2254 is procedurally barred. For the reasons set out below, we deny Mr.

Bailey’s motions to proceed on appeal informa pauperis and for a certificate of

appealability, and we dismiss the appeal.

The procedural history to this action is complicated. Prior to pleading

guilty to various narcotics offenses, James R. Bailey claimed he was denied his

right to a speedy trial. After he was sentenced, he attempted to appeal his

conviction directly. The Colorado Court of Appeals dismissed his claim on the

grounds that guilty pleas could be reviewed only on collateral attack, not on direct

appeal. Mr. Bailey petitioned for a writ of certiorari, which the Colorado

Supreme Court denied. He then filed for habeas corpus relief pursuant to 28

U.S.C. § 2254. This court affirmed the district court’s holding that Mr. Bailey

had not exhausted his state remedies and dismissed his petition. See Bailey v.

Wilson, 1993 WL 487942 (10th Cir. filed Nov. 28, 1993).

Thereafter, Mr. Bailey properly appealed his guilty plea in state court,

alleging a violation of his statutory and constitutional right to a speedy trial. The

Colorado Court of Appeals denied relief. He again petitioned the Colorado

Supreme Court for a writ of certiorari. He made no mention of his Sixth

Amendment right to a speedy trial, however, but instead focused solely on his

statutory right to a speedy trial under Colorado law. 
1

 This petition does not constitute “a second or succesive petition” under

28 U.S.C. § 2244(b)(3)(A) because Mr. Bailey’s prior section 2254 petition was

dismissed for failure to exhaust state remedies. See McWilliams v. Colorado, 121

F.3d 573,575 (10th Cir. 1997).

2

 The magistrate issued an order to show cause which stated, in part,

“[p]etitioner shall remain in custody and within the jurisdiction of this court until

further order.” Mr. Bailey claims on appeal that prison officials relied on this

language to revoke their prior decision to parole him, thereby violating his due

process and equal protection rights. On March 23, 1998, Mr. Bailey was paroled

in this case. This claim is therefore moot.

-3-

After his second petition for a writ of certiorari was denied, Mr. Bailey

filed this section 2254 action in federal court1 claiming 1) a violation of his

Colorado statutory right to a speedy trial, 2) a violation of his constitutional right

to a speedy trial, and 3) a denial of his right to a direct appeal of the state trial

court’s dismissal of his speedy trial motion.2 The magistrate recommended

dismissal of the petition because Mr. Bailey did not raise the constitutional issue

in his second petition for a writ of certiorari and consequently that claim was not

properly exhausted. The district court dismissed the petition as procedurally

barred.

Mr. Bailey raises the same issues on appeal. His claims under Colorado

law are not properly before us because section 2254 authorizes a habeas corpus

action only for violations of the federal Constitution, not for state law claims.

See 28 U.S.C. § 2254(a). We agree with the decisions below finding Mr. Bailey’s

Sixth Amendment claim is procedurally barred because he did not exhaust his
-4-

state court remedies with respect to this claim and can no longer do so. See

COLO. REV. STAT. § 16-5-402 (1998). We therefore DENY Mr. Bailey’s motions

to proceed informa pauperis and for a certificate of appealability and DISMISS

the appeal. 

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge