* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 

### JUN 6 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TYRONE “McDANIEL” YAHWEH, Petitioner-Appellant, v. ARISTEDES W. ZAVARAS, Executive Director, Department of Corrections; GALE A. NORTON, Attorney General of the State of Colorado, Respondents-Appellees. No. 96-1517 (D.C. No. 95-N-3258) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges.
Petitioner-Appellant Tyrone “McDaniel” Yahweh was c onvicted by a Colorado state court jury on two counts stemming fr om an incident in which Yahweh had sexual intercourse with (and impregnated ) his fourteen year-old half sister. Yahweh was 27 or 28 years old at the time. The incident occurred in- 2 -

November 1991, but was not reported to law enforcem ent authorities until April 1992. On May 8, 1992, Yahweh was arrested. Yahwehwas tried in December 1992, but the jury could not agree on a verdict. H e was retried and convicted in March 1993, and sentenced to eight years in prison. The conviction and sentence were subsequently affirmed by the Colorado Court of Appeals. People v. McDaniel , No. 93-CA-0936 (Colo. Ct. App. Sept. 15, 1994) (u npublished order), cert. denied , No. 94-SC-645 (Colo. Mar. 27, 1995) (unpublished order). Yahweh then brought the present petition for federa l habeas corpus relief under 28 U.S.C. § 2254 (Supp. 1996), alleging that his Sixth Amendment right to a Speedy Trial was violated by the eleven-month per iod of incarceration to which he was subject prior to his conviction. The distri ct court granted Yahweh’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(b) (as amended in 1996). A magistrate judge then recommended dism issal of Yahweh’s petition, on the grounds that Yahweh had failed to exhaust hi s state remedies. Yahweh v.
Zavaras , No. 95-N-3258 (D. Colo. Mar. 14, 1996) (Recommend ation of Magistrate Judge Borchers). After considering Yahw eh’s objections, the district court adopted the magistrate judge’s recommendation , and dismissed Yahweh’s petition. Yahweh v. Zavaras , No. 95-N-3258 (D. Colo. Sept. 26, 1996) (Order of Dismissal).- 3 -

In addition, the district court denied Yahweh’s sub sequent request for a certificate of appealability. Yahweh v. Zavaras , No. 95-N-3258 (D. Colo. Nov. 12. 1996) (Order Denying Certificate of Appealabili ty). “In a habeas corpus proceeding in which the detention complained of ari ses out of process issued by a State court, an appeal by the applicant for the wri t may not proceed unless a district or a circuit judge issues a certificate of appealability. . . .” Fed. R. App. P. 22(b) (as amended in 1996); accord28 U.S.C. § 2253(c)(1)(A) (as amended in 1996). Where, however, as here, the district judge denies a habeas applicant’s request for such a certificate, “the applicant for the writ may then request issuance of the certificate by a circuit judge.” I d. If, as here, “no express request for a certificate is filed, the notice of appeal sh all be deemed to constitute a request addressed to the judges of the court of app eals.” Id. Thus, we will consider Yahweh’s notice of appeal to constitute a request for issuance of a certificate of appealability. A certificate of appealability may issue “only if t he applicant has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2) (as amended in 1996). If issued, the ce rtificate of appealability shall indicate which specific issue or issues satisfy this showing. 28 U.S.C. § 2253(c)(3) (as amended in 1996).- 4 -

In the present case, Yahweh has shown that he was i ncarcerated for eight months prior to his initial trial, and eleven month s prior to his conviction. Further, he has alleged that Colorado’s Speedy Tria l Act, Colo. Rev. Stat. § 18-1- 405 (1986 & Supp. 1996), is the only Speedy Trial A ct in the United States which begins to run from the time of arraignment rather t han the time of arrest, and that the United States Constitution requires that a “spe edy trial” be measured from the time of arrest. Because we think that Yahweh’s cla ims raise substantial constitutional questions, we hereby grant Yahweh’s request for a certificate of appealability. Nonetheless, we must deny Yahweh’s application for a writ of habeas
corpus . Under Section 104 of the Antiterrorism and Effec tive Death Penalty Act of 1996: [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court s hall not be granted unless it appears that: (A) the applicant has exhausted the remedies availa ble in the courts of the State; or (B)(i) there is an absence of available State corre ctive process; or (ii) circumstances exist that render su ch process ineffective to protect the rights of the ap plicant. 28 U.S.C. § 2254(b)(1) (as amended in 1996). Secti on 104 applies even when it appears to a federal court that a state prisoner ha s made a substantial showing that he is being held in violation of his federal consti tutional rights.- 5 -

In the present case, Yahweh concedes that he has no t exhausted his state court remedies. Indeed, he concedes that he never raised his Speedy Trial Claim at his trial, on his direct appeal, or in any state proceeding for postconviction relief. Yahweh claims, however, that he need not e xhaust state processes because “circumstances exist that render such process ineff ective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii) (as amended in 1996). Specifically, Yahweh claims that any proceeding in a Colorado state court would be futile because the Colorado courts have already decided th e precise issue Yahweh raises, adversely to Yahweh’s position. See Goodwin v. Oklahoma , 923 F.2d 156, 158 (10th Cir. 1991) (holding that exhaustion of st ate remedies is not necessary where the state’s highest court has explicitly and recently addressed the precise issue advanced by a petitioner); Alvarez v. Turner , 422 F.2d 214, 216 n.3 (10th Cir.), cert. denied , 399 U.S. 916 (1970) (same). In support of his claim, Yahweh cites an unpublishe d opinion of the Colorado Court of Appeals in which an identical fed eral constitutional challenge to Colo. Rev. Stat. § 18-1-405 (1986 & Supp. 1996) was rejected. See People v. Green , No. 92-CA-1728, slip op. at 8 (Colo. Ct. App. Dec . 2 1993) (unpublished Order), cert. denied , No. 94-SC-62 (Colo. Apr. 25, 1994) (unpublished O rder). The defendant in Greenhad argued that Colo. Rev. Stat. § 18-1-405 (1986 & Supp. 1996) violates the Sixth Amendment by failing to begin the computation of- 6 -

the permissible trial period from the date of arres t, and by allowing the state six months to begin the trial, rather than 120 days. Y ahweh advances identical arguments here. Despite the Greencase, however, we must reject Yahweh’s claim that recourse to the Colorado courts would be futile. A s an initial matter, we note that Greenwas an unpublished opinion of the Colorado Court o f Appeals, and is therefore not binding on any court in Colorado. Co lo. App. R. 35(f). Indeed, even publishedopinions of a panel decision of the Colorado Courtof Appeals are not binding on any other panel of that court. See People v. Young , 825 P.2d 1004, 1007 (Colo. Ct. App. 1991) (expressly declini ng to follow a recent opinion of a different panel of the same court). Thus, forpresent purposes, the decision of the Greenpanel is simply not equivalent to a binding opinio n of the Colorado Supreme Court. Further, Colorado courts have recognized the defectin the Colorado Speedy Trial Act of which Yahweh complains. Corresponding ly, Colorado courts have been willing to recognize constitutional “speedy tr ial” claims even where the requirements of the Colorado Speedy Trial Act were fully complied with. See,
e.g. Barela v. People , 826 P.2d 1249, 1255 n.5 (Colo. 1992) (“The fact t hat the defendant was accorded his statutoryright to a speedy trial . . . does not necessarily resolve whether the delay occasioned by the dismissal of the- 7 -

impaneled but unsworn jury and the rescheduling of the trial violated the defendant's constitutionalright to a speedy trial or was otherwise violative of due process of law.”) (emphasis in original); accord Gelfand v. People , 586 P.2d 1331, 1332 (Colo. 1978). Under these circumstances , we cannot agree that recourse to the Colorado courts would be “futile.” Finally, we note that under Colo. R. Crim. P. 35(c) (3), a prisoner “who is aggrieved and claiming either a right to be release d or to have a judgment of conviction set aside on [constitutional] grounds . . . may file a motion at any time in the court which imposed sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a vio lation of his constitutional rights.” We see no reason why Yahweh cannot avail himself of this procedure. We therefore hold that Yahweh has not exhausted his state remedies. See 28 U.S.C. § 2254(c) (as amended in 1996) (“An applican t shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.”). Finally, we note that in the present appeal, Yahweh for the first time claims that he received ineffective assistance of counsel, and that the state trial judge was incompetent. These claims were neither raised in any Colorado state proceedings, nor in the district court below. We t hus decline to reach them. See- 8 -

Walker v. Mathers , 959 F.2d 894, 896 (10th Cir. 1992) (this court wi ll not consider an issue on appeal that was not raised bel ow). We therefore AFFIRM the Order of the district courtdismissing Yahweh’s habeas corpus petition on the ground that Yahweh failed to exhau st his state remedies. We also DENY Yahweh’s recently-filed Mot ion of Objection to Order, in which Yahweh asks us to reconsider our Order of May 2, 1997, denying Yahweh’s request to submit a 101 page brief. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge