Anthony Ray Jenkins v. State of Kansas, Don L. Scott, (NFN) Wilson, (NFN) Olson, 66 F.3d 338, 10th Cir. (1995)
Anthony Ray Jenkins v. State of Kansas, Don L. Scott, (NFN) Wilson, (NFN) Olson, 66 F.3d 338, 10th Cir. (1995)
3d 338
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
LOGAN
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. We grant petitioner
Anthony Ray Jenkins' application for a certificate of probable cause and his
motion to be allowed to proceed on appeal in forma pauperis in order to reach
the merits of his claims.
In his petition for a writ of habeas corpus in federal court petitioner raises not
only the lawfulness of the arrest and subsequent search but also the following:
double jeopardy (although there was only a single legal proceeding arising out
of this arrest), a hearsay violation (without any recital of what constituted the
hearsay), Sixth Amendment violations of his right to a speedy trial, to have
compulsory process for obtaining witnesses in his favor, and the assistance of
counsel (the only factual assertion is that "I had no accuser in a court of law but
the state is still holding me in prison"), Thirteenth Amendment violation (his
punishment makes him a slave), a Fourteenth Amendment violation (citing the
Privileges and Immunities Clause, due process, and equal protection--the only
factual assertion being that "because I did not exhaust state remedies now the
Supreme Court has recalled the mandate of the Court of Appeals and the state
must make good on this bond and relieve me from prison or be denying me
equal protection of the law from all the courts"), and national government
supremacy (an apparent reference to the Supremacy Clause, arguing that state
law conflicts with national law in some manner unspecified, except he argues
state law keeps him from confronting the witnesses against him).
The factual basis of the reference to the Kansas Supreme Court's stay is not
apparent from the record in this case. But this prisoner has filed thirty appeals,
most of them related, in this court in a span of nine months (we dispose of ten
this day). We can take judicial notice of the records of official state court
proceedings. In a related appeal it appears that this petitioner challenged the
constitutional adequacy of his attorney's representation in the initial state court
appeal. When that attorney sought to be relieved as counsel, the Kansas
Supreme Court entered such an order and stayed the mandate of the court of
appeals (which had affirmed petitioner's convictions) until new counsel could
review the materials and make appropriate presentations to the Supreme Court.
Thereafter, the Kansas Supreme Court denied review without comment, thus
apparently rejecting the constitutional inadequacy argument made by petitioner.
After commenting correctly that Stone v. Powell, 428 U.S. 465 (1976), barred
the federal court from granting relief on an unconstitutional search and seizure
issue fully adjudicated in state court, as this was, the district court in the instant
case dismissed the petition without prejudice for failure to exhaust his state
court remedies. This order apparently was entered before the Kansas Supreme
Court denied review of the Kansas Court of Appeals decision. Because we now
know of that denial the claim involving the allegedly unlawful arrest and
subsequent search has been exhausted. We could uphold the district court's
dismissal on ground that the other issues cited above, raised by the petitioner,
For the reasons stated, we AFFIRM the district court's judgment of dismissal
but order that the dismissal be with prejudice.
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470