* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

James R. Bailey appeals the district court’s holdin g that his action under 28 U.S.C. § 2254 is procedurally barred. For the reas ons set out below, we deny Mr. Bailey’s motions to proceed on appeal informa paupe ris and for a certificate of appealability, and we dismiss the appeal. The procedural history to this action is complicate d. Prior to pleading guilty to various narcotics offenses, James R. Bail ey claimed he was denied his right to a speedy trial. After he was sentenced, h e 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 certio rari, 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 co urt’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 constitut ional 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 ins tead focused solely on his statutory right to a speedy trial under Colorado law.1 This petition does not constitute “a second or su ccesive petition” under

28 U.S.C. § 2244(b)(3)(A) because Mr. Bailey’s prio r 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 whic h stated, in part, “[p]etitioner shall remain in custody and within th e jurisdiction of this court until further order.” Mr. Bailey claims on appeal that p rison officials relied on this language to revoke their prior decision to parole h im, 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 court 1 claiming 1) a violation of his Colorado statutory right to a speedy trial, 2) a vi olation 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 no t 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 c laims under Colorado law are not properly before us because section 2254 authorizes a habeas corpus action only for violations of the federal Constitut ion, not for state law claims. See 28 U.S.C. § 2254(a). We agree with the decisions b elow finding Mr. Bailey’s Sixth Amendment claim is procedurally barred becaus e he did not exhaust his-4-

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

. S TAT
. § 16-5-402 (1998). We therefore DENY Mr. Bailey’s motions to proceed informa pauperis and for a certificate o f appealability and DISMISS the appeal. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge