Doby v. Marr, 10th Cir. (1998)
Doby v. Marr, 10th Cir. (1998)
TENTH CIRCUIT
APR 23 1998
PATRICK FISHER
Clerk
No. 97-1365
Respondents - Appellees.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
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of the denial of a constitutional right. Therefore, we deny his request for a certificate of
appealability and dismiss the appeal.
Petitioner is an inmate at the Centennial Correctional Facility in Canon City,
Colorado. On June 5, 1997, Petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. 2254 seeking relief from a 1988 Colorado state court conviction.
As grounds for his petition, Petitioner alleged, inter alia, that his trial and appellate
counsel were ineffective, that the trial court had no jurisdiction over his case, that his
right to a speedy trial was violated, that his rights to substantive and procedural due
process were violated, and that his right to equal protection was violated. The district
court referred the case to a magistrate judge who issued an order to show cause why
Petitioners request for a writ of habeas corpus should not be dismissed for failing to
comply with the one-year limitation period provided for in the Antiterrorism and
Effective Death Penalty Act of 1996. 28 U.S.C. 2244(d)(1). After considering
Petitioners response, the magistrate recommended that the case be dismissed for lack of
subject matter jurisdiction. The district court adopted the magistrates recommendation
and dismissed Petitioners 2254 petition. On appeal, Petitioner requests, among other
things, that we grant his certificate of appealability, reverse the district courts decision,
and remand the case with instructions to grant his request for a writ of habeas corpus.
We have reviewed Petitioners application for certificate of appealability, his brief,
the district courts order, and the entire record before us. We conclude Petitioner has not
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demonstrated that the district courts disposition of his 2254 petition is debatable,
reasonably subject to a different outcome on appeal, or otherwise deserving of further
proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (substantial
showing of denial of constitutional right shown by demonstrating that; (1) issues raised
are debatable among jurists, (2) an appellate court could resolve issues differently, or (3)
the questions deserve further proceedings.). Accordingly, we DENY Petitioners motion
for a certificate of appealability and DISMISS his appeal.
Bobby R. Baldock
Circuit Judge