Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
FEB 12 1997
PATRICK FISHER
Clerk
JASON STARR,
Petitioner-Appellant,
v.
WYOMING DEPARTMENT OF
CORRECTIONS STATE
PENITENTIARY WARDEN, also
known as Duane Shillinger;
WYOMING ATTORNEY GENERAL,
No. 96-8033
(D.C. No. 93-CV-259)
(D. Wyo.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and LUCERO, Circuit Judges.
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
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.
Petitioner filed his notice of appeal on April 11, 1996. On May 22, 1996,
the district court issued a certificate of probable cause (CPC). We have
previously held that the standard for issuing a CPC is the same as the standard for
issuing a certificate of appealability, required in its stead as of April 24, 1996 by
the Antiterrorist and Effective Death Penalty Act. See Lennox v. Evans, 87 F.3d
431, 434 (10th Cir. 1996), cert. denied, 65 U.S.L.W. 3488 (U.S. Jan. 13, 1997)
(No. 96-6621). Accordingly, the district courts CPC determination permits
petitioner to proceed on appeal.
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In its May 22, 1996 order, the district court also allowed petitioner to
proceed in forma pauperis on appeal. The Prison Litigation Reform Act (PLRA),
which became law on April 26, 1996, imposes filing fee obligations on a
prisoner who brings a civil action or files an appeal in forma pauperis. Pub.
L. No. 104-134, 804(a)(3), 110 Stat. 1321 (1996). Even assuming that a 2254
habeas petition is subject to the PLRA, the PLRA does not apply to the petition
before us because Starr filed his notice of appeal on April 11, 1996, fifteen days
before the PLRA became law. See White v. Gregory, 87 F.3d 429, 430 (10th Cir.)
(finding amendments to 28 U.S.C. 1915 inapplicable to an appeal of 1983
action where notice of appeal filed before Act became law), cert. denied, 117 S.
Ct. 528 (1996).
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murder charge and five to ten years for the assault. As the factual basis for the
pleas was being established, petitioner told the court that the murder victim had
threatened to shoot him, see R., doc. 21, ex. J at 18, and had reached for the glove
compartment where petitioner thought a gun might be concealed, see id. at 18-19.
When petitioner persisted in this self-defense claim, the court rejected the plea
agreement and set the case for trial.
Five hours later, after talking with his lawyer, petitioner again came before
the court in a change-of-plea hearing. The plea agreement was again presented,
and petitioner did not renew his self-defense claim. Following testimony from the
sheriff who investigated the crimes, which provided no support for a claim of
self-defense, the court accepted petitioners guilty pleas and sentenced him
accordingly. Petitioner did not file a direct appeal; however, over the course of
the next eight years, he proceeded to make numerous other filings.
In 1986, petitioner filed a motion for credit for presentence incarceration in
state court. This motion was denied, and no appeal was taken. In 1990, he filed
in state court a motion for correction of an illegal sentence, seeking merger of
offenses. That motion was also denied, but this time petitioner appealed.
Because the record was not timely docketed, the Wyoming Supreme Court
dismissed the appeal, but treated it as a petition for writ of certiorari and granted
the petition. On certiorari, the court affirmed the district courts denial of
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petitioners motion for correction of an illegal sentence; however, the Court sua
sponte granted petitioner the presentence incarceration credit he had earlier
requested. See Starr v. State, 821 P.2d 1299, 1300-01 (Wyo. 1991).
In 1993, petitioner filed in state court a petition for post-conviction relief,
claiming false imprisonment, kidnaping, illegal sentence, [and] illegal
incarceration. R., doc. 1 at 4. This petition was dismissed, and petitioner did
not seek review by the state Supreme Court. Next, petitioner filed a habeas
petition in federal district court, which was dismissed without prejudice for
failure to exhaust state remedies. No appeal was taken. Petitioner returned to
state court, filing in the Wyoming Supreme Court a Petition for Writ of
Certiorari for Restoration of Petitioners Direct Appeal. Petitioner alleged he
was denied his right to direct appeal, had received ineffective assistance of
counsel, that his guilty pleas were not voluntary, and that he was denied access to
the courts. The Wyoming Supreme Court denied the petition without reaching the
merits, characterizing it as an improperly filed second petition for post-conviction
relief, and barred as successive. R., doc. 1, attach.
In 1993, petitioner filed this habeas action, claiming he was denied his right
to direct appeal, that he received ineffective assistance of counsel, and that he
was denied access to the courts. He later added that his guilty pleas were
coerced. The district court initially dismissed the petition without prejudice as
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position that he was unaware of the judges statementand thus the basis of his
claimuntil after he saw a transcript of the hearing.
Although petitioner has failed to establish cause to excuse his procedural
default, we may nevertheless address his claim if our failure to do so would result
in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. The
fundamental miscarriage of justice exception applies only when a petitioner
supplements his constitutional claim with a colorable showing of factual
innocence. Brecheen, 41 F.3d at 1357 (quoting Herrera v. Collins, 113 S. Ct.
853, 862 (1993)) (further quotations omitted). Although petitioner now claims to
have been coerced into abandoning his claim of self-defense and pleading
guilty, he has made no showing whatsoever that he was indeed acting in selfdefense during the incident which gave rise to his conviction. On the contrary,
the transcripts upon which he relies reflect that, although he suggested he acted in
self-defense at his arraignment, see R., doc. 21, ex. J at 18-19, he later
represented to the court that he was not alleging self-defense, see R., doc. 21, ex.
K at 3-4, admitted to shooting and killing the victim because he lost [his] head,
id. at 14-15, and further admitted that he did not think the victim would try to kill
him, see id. at 17. Accordingly, petitioner has not made a sufficient showing of
actual innocence to overcome his procedural default.
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Petitioner also argues that he has been denied due process and equal
protection in this habeas action because, despite repeated requests, he has never
received copies of three of the fourteen exhibits which accompanied the states
motion to dismiss in district court, and thus could not defend against
evidence . . . used against him in this action. Appellants Br. at 2. In particular,
he complains of not having received Respondents Exhibit E (report of
petitioners mental evaluation at the Wyoming State Hospital), Respondents
Exhibit F (report of independent psychological evaluation of petitioner), and
Respondents Exhibit G (petitioners plea agreement). Even if petitioner did not
receive these three exhibits, there has been no constitutional violation. The
record indicates that all three were provided to the district court by way of
background information, and the court did not rely upon them in dismissing the
petition. Nor do we. Furthermore, Exhibit G embodies the plea agreement
presented to the state court at petitioners arraignment and at his change of plea
hearing, which both he and his counsel acknowledged in open court. See R., doc.
21, ex. J at 13-14 and ex. K at 8-9. Plainly, petitioner cannot now claim to be
unaware of its contents.
Finally, petitioner also alleges bias on the part of the district court in this
habeas proceeding, citing as evidence its rulings against him and its failure to
order respondent to provide him copies of the requested exhibits. Adverse rulings
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alone do not establish judicial bias, and we find none here. Cf. Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996) (affirming dismissal of 2241 petition,
where petitioner argued that 2255 was an inadequate remedy, citing sentencing
courts denial of his previous 2255 petitions as evidence of bias).
AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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