OpenJurist

48 F3d 1231 Adamson v. W Zavaras Gale

Gary Lynn ADAMSON, Petitioner-Appellant,
v.
Aristedes W. ZAVARAS, Executive Director; Bob Hickox; GALE
Norton, Attorney General of the State of Colorado,
Respondents-Appellees.

No. 94-1470.
(D.C. No. 94-N-1377)

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1995.

48 F.3d 1231
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 JUDGMENTS1

Before TACHA, LOGAN and KELLY, Circuit Judges.

1

This matter is before the court on petitioner Gary Lynn Adamson's application for a certificate of probable cause. The right of a petitioner convicted of a state crime to appeal a federal district court's denial of habeas corpus relief is conditioned upon either the district court or this court granting a certificate of probable cause. See 28 U.S.C. 2253.

2

The Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), declared that the "primary means of separating meritorious from frivolous [habeas corpus] appeals should be the decision to grant or withhold a certificate of probable cause." We will not grant such a certificate unless the petitioner makes "a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings." Gallagher v. Hannigan, 24 F.3d 68 (10th Cir.1994)(citing Barefoot, 463 U.S. at 893 & n. 4).

3

Petitioner raises four issues in this appeal, but has not exhausted his state remedies with regard to three of those claims. He may be excused from the exhaustion requirement if those claims are procedurally defaulted in state court and he demonstrates either cause and actual prejudice, or that denying federal review will result in a fundamental miscarriage of justice. Coleman v. Thompson, 111 S.Ct. 2546 (1991). Neither the record nor the factual allegations in the petition meet these standards. The fourth claim, alleging a due process violation because the prosecutor added habitual criminal charges after petitioner refused a plea bargain, does not demonstrate prosecutorial vindictiveness nor the violation of a recognized constitutional right, and therefore fails on the merits.

4

The magistrate judge in the Report and Recommendation of August 29, 1994, which was adopted by the district court, correctly analyzed the facts and law. We conclude that petitioner has failed to make the necessary showing to warrant our issuance of a certificate of probable cause. Therefore, we deny his application and DISMISS the appeal.

5

The mandate shall issue forthwith.

1

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