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2d 1294
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
Petitioner was convicted of burglary and larceny in 1967 and his conviction
was affirmed on direct appeal. See Johnson v. People, 468 P.2d 745, 747
(Colo.1970). According to defendant, he has filed two motions for state
postconviction relief alleging ineffective assistance of counsel. He submits that
the state courts have refused to order an evidentiary hearing. He argues that his
trial counsel was ineffective because counsel did not attempt to challenge the
competency of the state's lead identification witness.1 See Johnson, 468 P.2d at
747. On direct appeal, the Colorado Supreme Court noted that the witness
testified that she had been voluntarily committed to the Colorado State Hospital
for shock. Id. The court indicated, however, "that it does not appear from the
record that this confinement was from any mental condition which would
render her testimony incompetent." Id.
3
Petitioner's first motion for postconviction relief on the 1967 conviction was
denied by a state district court on June 5, 1970. No appeal was taken. In 1985,
after being adjudged an habitual criminal, petitioner again sought state
postconviction relief on the 1967 conviction. The state district court again
denied relief. In his federal habeas petition, petitioner stated that he sought
review of the state district court's denial in the state supreme court, but
certiorari was denied.
The federal magistrate judge recommended dismissal of the habeas petition for
failure to exhaust state remedies, reasoning that "the Colorado Court of
Appeals, not the Colorado Supreme Court, has initial jurisdiction over appeals
from district court final judgments." R. doc. 6 at 2. The federal district court
dismissed the petition for failure to exhaust state remedies and noted that mixed
petitions containing exhausted and unexhausted claims must be dismissed
pursuant to Rose v. Lundy, 455 U.S. 509 (1982). I R. doc. 9 at 2.
We agree with the district court and the magistrate that petitioner must first
exhaust his state remedies, 28 U.S.C. 2254(b) & (c); Picard v. Connor, 404
U.S. 270, 275-76 (1971). However, the Colorado Court of Appeals rejected
petitioner's second motion for postconviction relief as successive and foreclosed
on the merits by the Colorado Supreme Court's opinion on direct appeal.
People v. Johnson, No. 87CA1827, unpub. order at 1 (Colo.App. Dec. 21,
1989). Thereafter, the Colorado Supreme Court denied review. Petitioner has
SO ORDERED.
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 cause therefore
is ordered submitted without oral argument
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
might have done under C.R.S. 1963, 154-1-6-(1)(b). Rather, on crossexamination, he sought to test her credibility.
Johnson, 468 P.2d at 747.