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  • Kenney v. State of Colorado, 10th Cir. (1999)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Raymond Kenney's appeal of the dismissal of his habeas corpus petition. The court dismissed the appeal for two reasons: 1) Kenney's habeas petition was moot because he had already served the sentence in Colorado that was the subject of his petition; and 2) even if the petition was not moot, Kenney would not be entitled to a certificate of appealability because by pleading guilty in Colorado state court, he waived his right to raise any constitutional violations that occurred prior to his guilty plea. Therefore, the court dismissed both of Kenney's appeals and denied his motion to proceed in forma pauperis.

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    Filed: 1999-07-09 Precedential Status: Non-Precedential Docket: 98-1317

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Raymond Kenney's appeal of the dismissal of his habeas corpus petition. The court dismissed the appeal for two reasons: 1) Kenney's habeas petition was moot because he had already served the sentence in Colorado that was the subject of his petition; and 2) even if the petition was not moot, Kenney would not be entitled to a certificate of appealability because by pleading guilty in Colorado state court, he waived his right to raise any constitutional violations that occurred prior to his guilty plea. Therefore, the court dismissed both of Kenney's appeals and denied his motion to proceed in forma pauperis.

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    11 views4 pages

    Kenney v. State of Colorado, 10th Cir. (1999)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Raymond Kenney's appeal of the dismissal of his habeas corpus petition. The court dismissed the appeal for two reasons: 1) Kenney's habeas petition was moot because he had already served the sentence in Colorado that was the subject of his petition; and 2) even if the petition was not moot, Kenney would not be entitled to a certificate of appealability because by pleading guilty in Colorado state court, he waived his right to raise any constitutional violations that occurred prior to his guilty plea. Therefore, the court dismissed both of Kenney's appeals and denied his motion to proceed in forma pauperis.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUL 9 1999

    PATRICK FISHER
    Clerk

    RAYMOND E. KENNEY,
    Petitioner-Appellant,
    v.

    Nos. 98-1317
    98-1324

    STATE OF COLORADO and


    ATTORNEY GENERAL FOR THE
    STATE OF COLORADO,

    (D.C. No. 97-D-2218)


    (D. Colo)

    Respondents-Appellees.

    ORDER AND JUDGMENT*


    Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
    Petitioner Raymond E. Kenney seeks a certificate of appealability and in forma
    pauperis status to appeal the district courts order dismissing his 28 U.S.C. 2254
    petition for a writ of habeas corpus. We conclude Petitioner has not made a substantial
    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.
    *

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument will not materially assist the disposition of this appeal.
    See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without oral
    argument.
    **

    showing of the denial of a constitutional right. Accordingly, we deny his request for a
    certificate of appealability and dismiss the appeal. Petitioners motion to proceed in
    forma pauperis is denied as moot.
    On September 23, 1996, Petitioner began serving a prison term in Hawaii.
    Approximately two months later, on November 20, 1996, prison officials received a
    detainer for Petitioner from the State of Colorado. The State of Colorado apparently
    sought to extradite Petitioner for use of an unauthorized credit instrument. Petitioner
    learned about the detainer on February 21, 1997. On April 1, 1997, Petitioner advised the
    Warden of the Hawaii State Penitentiary, in writing, of his wish to have a final disposition
    of the charges underlying the Colorado detainer. The Warden forwarded Petitioners
    request to the Eagle County, Colorado District Attorney. The State of Colorado did not
    act on Petitioners request until August 11, 1997, when it extradited him to face the
    Colorado charge. On November 25, 1997, Petitioner pled guilty in Colorado state court
    to use of an unauthorized credit instrument and received a ninety-day sentence.
    While incarcerated in Colorado, Petitioner filed the instant habeas petition in the
    district court complaining that prior to pleading guilty to the Colorado charges, he was
    deprived of his rights to due process and equal protection when respondents violated: (1)
    the Interstate Agreement on Detainers Act (IADA) by not giving him notice that Colorado
    authorities were lodging a state detainer against him while he was incarcerated in Hawaii;
    (2) the IADA by bringing him to trial more than 180 days after he requested a final
    2

    disposition of the charges; and (3) the Uniform Criminal Extradition Act by not providing
    him with a pretransfer hearing. The district court dismissed the petition. Petitioner has
    since served the Colorado sentence and is currently residing in Hawaii. Because
    Petitioner has already been extradited to Colorado, convicted under its laws, and served
    the Colorado sentence, his habeas petition is moot. See Kearns v. Turner, 837 F.2d 336
    (8th Cir. 1988); Burrus v. Turnbo, 743 F.2d 693 (9th Cir. 1984), vacated as moot sub
    nom, Hijar v. Burrus, 474 U.S. 1016 (1985). Accordingly, we are without jurisdiction to
    hear his appeal.
    In any event, Petitioner would not be entitled to a certificate of appealability even
    if we assumed that his application for habeas relief were not moot.1 We may grant a
    certificate of appealability only where a Petitioner demonstrates the substantial showing
    of the denial of a constitutional right. United States v. Simmonds, 111 F.3d 737, 746
    (10th Cir. 1997). Assuming that the alleged violations of the IADA and UCEA rise to the
    level of constitutional violations, Petitioners argument must fail. When a criminal
    The district court dismissed Petitioners habeas application on July 22, 1998. On
    August 17, 1998, Petitioner filed a Financial Affidavit which the district court
    construed as a timely filed notice of appeal. Construing the Financial Affidavit as the
    functional equivalent of a timely filed notice of appeal, see Smith v. Barry, 502 U.S. 244,
    248-49 (1992), we assigned case number 98-1317 to Petitioners appeal. On August 24,
    1998, Petitioner filed a pro se notice of appeal. We assigned case number 98-1324 to
    that appeal. Under Fed. R. App. P. 4(a)(1), a Petitioner appealing from the denial of
    habeas relief has thirty days in which to file a notice of appeal. Petitioner filed his second
    notice of appeal four days past the thirty-day deadline. Compliance with Rule 4 is
    mandatory and jurisdictional. Accordingly, we have no jurisdiction to reach the merits of
    98-1324, and DISMISS that appeal.
    1

    defendant has solemnly admitted in open court that he is in fact guilty of the offense with
    which he is charged, he may not thereafter raise independent claims relating to the
    deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
    Tollett v. Henderson, 411 U.S. 258, 267 (1973). Defendant pled guilty in Colorado state
    court after the alleged constitutional violations occurred. Consequently, he waived his
    right to raise them in a subsequent appeal. See id. Therefore, because he cannot make a
    substantial showing of the denial of a constitutional right, Petitioner is not entitled to a
    certificate of appealability.
    APPEALS DISMISSED; MOTION TO PROCEED IN FORMA PAUPERIS
    DENIED.
    Entered for the Court,

    Bobby R. Baldock
    Circuit Judge

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