OpenJurist

117 F3d 1428 Judy v. State

117 F.3d 1428

97 CJ C.A.R. 1163

Cody Robert JUDY, Petitioner-Appellant,
v.
STATE of Utah, Respondent-Appellee.

No. 96-4196.

United States Court of Appeals, Tenth Circuit.

July 14, 1997.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

ORDER AND JUDGMENT*

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

1

Mr. Judy, appearing pro se, appeals from the district court's dismissal of his habeas corpus petition, 28 U.S.C. § 2254, pursuant to the recommendation of the magistrate judge. He also seeks a certificate of appealability. 28 U.S.C. § 2253(c)(2).

2

As we understand the petition, Mr. Judy contends that (1) his guilty plea was not knowing and voluntary, (2) he received ineffective assistance of counsel in connection with his plea and was denied the right to an appeal due to ineffective assistance of counsel, and (3) his conviction violates the First Amendment. The state responded that the petition should be dismissed because of failure to exhaust state remedies and procedural bar. We agree with the magistrate judge that the possibility of state post-conviction relief on some or all of the claims has not been exhausted, and exhaustion is a necessary prerequisite to bringing this action. 28 U.S.C. § 2254(b)(1)(A). We express no opinion on whether such claims are procedurally barred. Because Mr. Judy may be able to obtain relief on his federal claims in state court, he has not at this point made "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2).

3

Therefore, we DENY Mr. Judy's application for a certificate of appealability and DISMISS the appeal.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument