Smith v. Hargett

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 7, 1999
• Docket: 99-6130
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 7 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

RICHARD DEAN SMITH,

Petitioner-Appellant,

v. No. 99-6130 (D.C. No. 97-CV-756) STEVE HARGETT, (W.D. Okla.)

Respondent-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Richard Dean Smith seeks a certificate of appealability in order to

pursue this appeal from an order of the district court denying his petition for

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. habeas corpus brought pursuant to 28 U.S.C. § 2254 . The court held that two of

the claims he brought in this action were procedurally barred and the remaining

claim was without merit. Because Smith has failed to make “a substantial

showing of the denial of a constitutional right,” as required under 28 U.S.C.

§ 2253(c)(2), we deny his request and dismiss the appeal. 1

Smith was convicted in an Oklahoma state court of three counts of second

degree murder for intentionally driving his automobile into a group of Indian

children walking on the shoulder of a highway, killing three of them. See Smith

v. State , 674 P.2d 569, 571 (Okla. Crim. App. 1984). He was sentenced to three

consecutive fifteen-year sentences. See id.

In his petition, Smith alleged that his signed written waiver and confessions

were coerced and, therefore, inadmissible. Smith contended that he was

administered a central nervous system tranquilizer without his permission at the

bar he was at earlier in the evening. He asserted that evidence of that act should

have been presented to show that he was incompetent to stand trial. The district

court dismissed the petition as his allegations included both claims that had been

exhausted and claims that had not been exhausted.

1 We initially questioned whether Smith’s notice of appeal was timely. Upon review of materials submitted by Smith and defendant, we conclude that the notice of appeal was timely.

-2- On appeal, we concluded that Smith had exhausted his state court remedies.

See Smith v. Hargett , No. 97-6378, 1998 WL 229679 at **2 (10th Cir. May 7,

1998). We remanded the case for a determination of whether Smith’s claims were

procedurally barred, an issue we raised sua sponte. 2 See id. On remand, the court

determined that Smith had exhausted his first claim and that it was without merit.

The court determined that Smith’s other two claims were procedurally defaulted

as Smith had failed to show either cause and prejudice for his default or factual

innocence. See, e.g. , Parkhurst v. Shillinger , 128 F.3d 1366, 1370-71 (10th Cir.

1997). The court denied relief.

On appeal, Smith raises thirty-one issues many with multiple subparts. We

may only examine the issues delineated in our mandate. Cf. Colorado Interstate

Gas Co. v. Natural Gas Pipeline Co. of Am. , 962 F.2d 1528, 1534 (10th Cir.

1992) (“rule is well established” that district court must strictly comply with

reviewing court’s mandate) .

We have reviewed the district court’s judgment in light of Smith’s

submissions to this court and the record on appeal. We agree that, as to his first

2 Smith argues that the issue of procedural bar was waived as defendant did not raise the issue to the district court. We may raise the issue sua sponte as long as the petitioner is permitted an opportunity to respond. See Hardiman v. Reynolds , 971 F.2d 500, 501 (10th Cir. 1992).

-3- claim, Smith failed to establish that the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). We also

agree that Smith failed to establish cause and prejudice for his failure to raise his

other claims in state court. Neither has he shown factual innocence.

We DENY Smith’s request for a certificate of appealability and DISMISS

this appeal. We GRANT his motion for in forma pauperis status. All remaining

pending motions are DENIED. We will not address any of the other issues Smith

has raised in his various affidavits to this court as they were not raised to the

district court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir.

1992). The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge

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