48 F3d 1232 Mitchell v. Cowley Warden

Carl Demetrius MITCHELL, Petitioner-Appellant,
Jack COWLEY, WARDEN, Respondent-Appellee.

No. 94-5160.
(D.C. No. 93-C-249-B)

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.


Before TACHA, LOGAN and KELLY, Circuit Judges.

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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 sub-mitted without oral argument. We grant petitioner's application for a certificate of probable cause and his motion for leave to proceed in forma pauperis in order to reach the merits of the case.


Petitioner Carl Demetrius Mitchell appeals the district court's denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus. The petition alleges three grounds for relief: (1)the trial court's refusal to give a cautionary eyewitness identification instruction, which petitioner contends was required by Oklahoma law, violated his federal constitutional rights; (2)there was insufficient evidence to support his conviction for the crime of larceny of merchandise from a retailer; and (3)the twenty-year sentence (consecutive to a three-year sentence for escape) imposed by the state trial court was vindictive and constituted double jeopardy.


We have reviewed the briefs and the record and are satisfied that the district court accurately summarized the facts and correctly applied the law. We cannot add significantly to the analysis of the district court in its order of August 2, 1994, and therefore AFFIRM for substantially the reasons stated therein.


The mandate shall issue forthwith.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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