* This order and judgment is not binding precedent, e xcept under the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

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RICHARD DEE THOMAS,

Petitioner-Appellant,

v. STATE OF UTAH; FRANCES M. PALACIOS; HENRY GALETKA, Warden; UTAH STATE PRISON; UTAH BOARD OF PARDONS,

Respondents-Appellees. No. 97-4006 (D.C. No. 96-CV-575-W) (D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Petitioner Richard Dee Thomas appeals the district court’s denial of his petition for a writ of habeas corpus, brought pursu ant to 28 U.S.C. § 2241 and1 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 ase is therefore ordered submitted without oral argument. -2- § 2254. 1 Because petitioner has not shown that the issuanc e of an arrest warrant and a search warrant by a Utah court commissioner v iolated his federal constitutional rights, we affirm. In July 1993, Utah circuit court commissioner Palac ios issued an arrest warrant and a search warrant leading to petitioner’ s conviction for aggravated robbery. In August 1994, the Utah Supreme Court de clared unconstitutional those portions of section 78-3-31 of the Utah Statutes wh ich delegated “core judicial functions” to court commissioners, contrary to arti cle VIII, section 8 of the Utah Constitution. SeeSalt Lake City v. Ohms , 881 P.2d 844, 851 (Utah 1994). Petitioner appealed his conviction, arguing Commiss ioner Palacios’ acts were unconstitutional. The Utah Court of Appeals rejected petitioner’s argument on the grounds that Ohms ’ holding was prospective only and did not apply to the issuance of a search warrant. This appeal is curre ntly pending before the Utah Supreme Court on certiorari review. Petitioner als o filed a state court application for extraordinary relief which was dismissed as pre mature. The Utah Supreme Court affirmed the dismissal based on the availabil ity of an adequate remedy in petitioner’s direct appeal. See Appellee’s Br., Addendum E.-3-

Petitioner brought a civil rights action against Co mmissioner Palacios in the federal district court, seeking damages, an inj unction, and release from imprisonment. The district court dismissed the act ion under 28 U.S.C. § 1915(d), and we affirmed the dismissal in Thomas v. Palacios , No. 95-4094, 1995 WL 758970 (10th Cir. Dec. 26, 1995). Petitioner filedhis current federal habeas petition in July 1996, alleging his conviction and sentence were unconstitutional because Commissioner Palacios lacked judicial autho rity to issue the arrest and search warrants. The district court denied the pet ition on the ground that the Ohms decision did not invalidate petitioner’s convictio n and sentence. This appeal followed. We review de novo the district court’s legal conclu sions in dismissing a habeas petition. See Davis v. Executive Dir., Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied , 117 S. Ct. 1703 (1997). Petitioner argues the district court erred in failing to recognize th at his conviction was unconstitutional because the Commissioner lacked ju dicial authority to issue the arrest and search warrants. Respondent argues thatthe dismissal may be affirmed either because petitioner failed to exhaust his state court remedies or because he failed to show the violation of a federal constitut ional right. Although it is clear that petitioner has not exhaus ted his claim, we choose to affirm the district court’s decision on the meri ts. See28 U.S.C. § 2254(2)-4-

(“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exh aust the remedies available in the courts of the State.”); Granberry v. Greer , 481 U.S. 129, 135 (1987) (holding both state and federal interests will be furthered by an affirmance on the merits, despite the lack of exhaustion, “if it is perfectl y clear that the applicant does not raise even a colorable federal claim”). Petitioner’s claim fails because, as we noted in Th omas v. Palacios , he has not alleged the violation of a federal constitution al right. See1995 WL 758970 at **2. The federal Constitution is not violated by i ssuance of an arrest warrant or a search warrant by a non-judge. See Shadwick v. City of Tampa , 407 U.S. 345, 348-50 (1972) (holding Constitution does not requir e arrest or search warrant to be issued by judge, so long as issuing party is “ne utral and detached, and . . . capable of determining whether probable cause exist s for the requested arrest or search”). Even if delegation of such functions contravened the Utah Constitution, therefore, it did not violate the federal Constitut ion, and petitioner is not entitled to relief in the form of a writ of habeas corpus.-5-

Petitioner’s outstanding motions, petitions, and em ergency applications are DENIED and the judgment is AFFIRMED. The mandate s hall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge