Filed: Patrick Fisher
Filed: Patrick Fisher
JAN 15 1999
PATRICK FISHER
Clerk
No. 98-1158
(D. Colo.)
(D.Ct. No. 96-Z-2811)
Respondents-Appellees.
GARY LEE COOPER,
Petitioner-Appellant,
v.
ADAMS COUNTY COURT,
DIVISION 2; ROBERT GRANT,
Adams County District Attorney,
No. 98-1159
(D. Colo.)
(D.Ct. No. 96-Z-2855)
Respondents-Appellees.
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ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
This order and judgment is not binding precedent except under the doctrines of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.
*
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
I. Background
After being charged with the crime of violating a temporary restraining
order, Mr. Cooper agreed to plead guilty to a lesser charge of disorderly conduct.
He then filed a motion to set aside his plea, alleging he entered the plea
agreement on an erroneous understanding of immediate sentencing. The court
denied the motion and sentenced him to a suspended six months in jail, twelve
months probation, a fine, and court costs. His probation is conditioned on
receiving mental health counseling and domestic violence treatment, and
At the time Mr. Cooper filed his 2254 petition, he was incarcerated on another
criminal matter. Because of his release, but continuing probation, the district court
presumed that the collateral consequences of Mr. Coopers incarceration did not render
his application moot.
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After sentencing, Mr. Cooper filed a pro se a notice of appeal, which the
county court denied. Mr. Cooper then filed a Motion for Order with the
Colorado Court of Appeals which subsequently denied the motion. During the
pendency of these motions, Mr. Cooper also filed with the Colorado Supreme
Court a mandamus for an extraordinary writ for relief, which was subsequently
denied. The county court dismissed his motion. Mr. Cooper then filed a motion
to quash his conviction, which the county court denied. All of these pleadings
stem from Mr. Coopers conviction for disorderly conduct, initially filed in
Adams County Court, Case No. 95M68.
these issues or any federal statutory or constitutional issues in the state court
proceedings. Consequently, the magistrate judge concluded Mr. Cooper failed to
exhaust his state remedies before filing his petition in federal court, and
recommended the petition be dismissed.
On appeal, Mr. Cooper claims the district court failed to read his 2254
petition or follow court rules; suggests he is not required to exhaust state
remedies; and asserts the district courts decision justifies the corruption of ...
Judicial Supermacy [sic]. With respect to his conviction and the state court
proceedings, Mr. Cooper reasserts improper denial of his right to a jury trial and
equal protection and due process under the Fourteenth Amendment. Mr. Cooper
also contends he was denied appointment of counsel, and he exhausted his
remedies in another Colorado state action, 94JN364," in which he raised the
same arguments he raises now on appeal concerning ineffective assistance of
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counsel and the courts lack of jurisdiction to issue a restraining order. As relief,
Mr. Cooper asks his son be returned to him and he be allowed to see his
stepdaughter.
Mr. Coopers 2254 petition stems from his conviction for disorderly conduct
after violating a temporary restraining order. Mr. Coopers 2241 petition centers on a
different state court proceeding, Adams County Court Case No. 95M3040, involving not
only violation of the restraining order, but domestic violence, harassment, and stalking
charges.
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On appeal, Mr. Cooper advises this court he filed his petition as a layperson
without knowledge of the intricacies of the law. He claims he is being illegally
prosecuted and the district attorney is covering up falsification of records and
creation of documents, including child abuse charges. In addition, he alleges
denial of due process and equal protection because he cannot get a copy of any
records, police reports, or files. He also continues to claim the statute on which
he was charged has been repealed. Finally, he alleges denial of his right to
confront his accusers.
II. Decision
The district court dismissed Mr. Coopers 2254 petition based on the
relevant law. We review a district courts legal conclusions in a 2254 action de
novo. See Hatch v. State, 58 F.3d 1447, 1453 (10th Cir. 1995). cert. denied, 517
U.S. 1235 (1996). Likewise, we review the district courts dismissal of his
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2241 motion de novo. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
While Mr. Cooper claims in his 2254 petition that he exhausted his claims of
ineffective assistance of counsel and lack of jurisdiction at the state level in another case,
Colorado State action 94JN364, we are not reviewing the disposition of that case, as it
is not on appeal to us in this proceeding.
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long held a state prisoners federal habeas corpus petition should be dismissed if
the prisoner has not exhausted available state remedies as to his federal claims. 5
Coleman, 501 U.S. at 732. Consequently, he has not exhausted his state remedies
with respect to the issues raised on appeal concerning either his 2254 or 2241
petitions.
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