Jim R. Housley v. Larry Williams Attorney General of the State of Oklahoma

25 F.3d 1057, 1994 U.S. App. LEXIS 23052, 1994 WL 237509

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 3, 1994
• Docket: 93-6089
• Status: Published

Opinion

25 F.3d 1057
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Jim R. HOUSLEY, Petitioner-Appellant,
v.
Larry WILLIAMS; Attorney General of the State of Oklahoma,
Respondents-Appellees.

No. 93-6089.

United States Court of Appeals, Tenth Circuit.

June 3, 1994.

Before ANDERSON and KELLY, Circuit Judges, and LUNGSTRUM,** District Judge.

ORDER AND JUDGMENT1

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.

Jim Housley appeals from the district court's denial of his petition for a writ of habeas corpus. Housley, appearing both pro se and in forma pauperis, filed his petition pursuant to 28 U.S.C. 2254. The Attorney General of Oklahoma moved to dismiss the petition, contending that Housley had not exhausted his state remedies, as required by 2254(b), see Anderson v. Harless, 459 U.S. 4, 6 (1982). The district court granted the motion, adopting the magistrate judge's report and recommendation.

Our jurisdiction arises from 28 U.S.C. 2253. In our examination of the district court order, we review Housley's contentions of error de novo. See Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir.), cert. denied, 114 S.Ct. 129 (1993). However, on review of a habeas decision, the state court's factual findings, with certain specified exceptions, carry a presumption of correctness. 28 U.S.C. 2254(d); Hernandez v. New York, 500 U.S. 352, ----, 111 S.Ct. 1859, 1869 (1991). Finally, we construe Housley's pro se pleadings liberally, as required by Haines v. Kerner, 404 U.S. 519, 520 (1972).

After our careful review of the record on appeal in light of these standards, and after due consideration of the parties' briefs on appeal, we conclude that the district court correctly decided this case. Therefore, for substantially the same reasons set forth in the district court's order dated February 24, 1993, adopting the magistrate judge's report and recommendation, dated October 30, 1992, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

The mandate shall issue forthwith.

** Honorable John W. Lungstrum, District Judge, United States District Court for the District of Kansas, sitting by designation

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